882
[2013] 1 S.C.R. 881
GHULAM NABI DAR & ORS.
v.
STATE OF J&K & ORS.
(Civil Appeal Nos.6-7 of 2013)
JANUARY 3, 2013
A
B
[ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR
AND J. CHELAMESWAR, JJ.]
Jammu and Kashmir State Evacuees’ (Administration of
Property) Act, 2006 – s. 6 – Notification published under,
declaring lands under the possession of appellants to be
vested in the Custodian of Evacuee Property – Whether
vitiated – Held, Yes, since the appellants had been denied
an opportunity of explaining that they were not mere
occupants of the property in question, but tenants thereof, in
which case, neither r.9 nor r.13-C of the 2008 Rules had any
application to the facts of the case – Jammu and Kashmir
State Evacuees’ (Administration of Property) Rules, 2008 –
rr.9 and 13C.
Jammu and Kashmir State Evacuees’ (Administration of
Property) Act, 2006 – s. 16 – Protection under – When
available – Held: It is available only in respect of evacuee
property after a determination to such effect is made – A
unilateral declaration is clearly opposed to the principles of
natural justice and administrative fair play and cannot be
supported.
Jammu and Kashmir State Evacuees’ (Administration of
Property) Act, 2006 – s. 6 – Notification issued under the Act,
declaring the land in question to be evacuee property –
Occupants claiming to be tenants-at-will of the said land since
before the Act came to be enacted, filed writ petition praying
inter alia that the said notification be quashed – Writ petition
before High Court – Out of Court settlement entered into
881
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A
between the parties and filed before the High Court –
Occupants of the lands in question had surrendered part of
the land in favour of the Custodian of Evacuee property while
remaining in possession of the remaining part of the land,
which were to be settled with them – Pursuant to the
B Settlement, the State authorities raised constructions on the
surrendered lands – But later took the stand that the
Settlement stood vitiated on account of non-compliance with
r.13C – Held: The Settlement was lawful and within the scope
of Sub-Rule (3) of Or.23 CPC – The special facts of the case
C set the present Agreement/Settlement apart from the cases
of grant of lease of vacant lands in terms of r.13C – Since
the lands were not vacant, the very first criterion of r.13C, was
not satisfied and the lease of the lands were to be granted as
part of the settlement packet, which included surrender of 22
D kanals of prime land – r.13C had no application to the
Settlement arrived at between the parties and the same was
not, therefore, vitiated for not putting the lands to auction to
determine the premium to be paid for the leases to be granted
in respect thereof – It was nobody’s case that the Settlement
was the outcome of any fraud or was unlawful and the same,
E
having been signed and acted upon, was binding on the
parties and could not be withdrawn unilaterally – Jammu and
Kashmir State Evacuees’ (Administration of Property) Rules,
2008 – r.13C.
F
On 21-11-1980, the Custodian of Evacuee Property,
Jammu and Kashmir, issued a Notification under Section
6 of the Jammu and Kashmir State Evacuees’
(Administration of Property) Act, 2006, declaring the land
in question to be evacuee property. Persons claiming to
G be in possession of the said land in the capacity of
tenants-at-will since before the aforesaid Act came to be
enacted, filed writ petition praying inter alia that the said
notification dated 21-11-1980 be quashed. During
pendency of the writ petition, the High Court restrained
H the respondents from raising any construction on the
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS.
883
spot. Aggrieved, the Custodian of Evacuee Property filed
LPA. While the matters were pending, an out of court
settlement was ultimately arrived at between the parties
which was submitted before the Court.
After filing the Settlement in Court and asking the
Court to take action thereupon, an application was made
on behalf of the Custodian of Evacuee Property for leave
to withdraw the settlement on the ground that the Chief
Minister had reversed the earlier decision taken on 27/
28th March, 2005 and, that, accordingly, the deponent, in
the affidavit, was not competent to enter into the
Settlement with the occupants of the evacuee property,
as the decision to do so had been withdrawn by the
competent authority. The State Government took the
stand that the Settlement stood vitiated on account of
non-compliance with Rule 13-C of the Jammu and
Kashmir State Evacuees’ (Administration of Property)
Rules, 2008.
Dispute arose as to whether having entered into a
Settlement, which stood concluded and had been acted
upon by the State Government by raising constructions
on the surrendered lands, could the Settlement have
been withdrawn unilaterally only at the instance of the
State Government.
The main plank of the submissions made on behalf
of the appellants is that the lands in question are not
evacuee property, and, that, the appellants were tenants
thereof since before the Act came into force. In fact, it is
the case of some of the appellants that their
predecessors-in-interest were in occupation of the lands
in question even prior to 1st March, 1947, and 14th
August, 1947, which clearly excluded the appellants from
the operation of the provisions of the 2006 Act and the
2008 Rules. The appellants claimed that as “protected
tenants”, they were entitled to continue in possession of
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[2013] 1 S.C.R.
the lands and, particularly so, in view of the Settlement
arrived at between the Appellants and the State
authorities.
Disposing of the appeals, the Court
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HELD: 1. Section 16 of the of the Jammu and
Kashmir State Evacuees’ (Administration of Property)
Act, 2006 deals with occupancy and tenancy rights. It is
clear from Section 16 that on account of the non-obstante
clause, the provisions of Section 16 will prevail over any
other law for the time being in force and the right of
occupancy in any land of an evacuee shall not be
extinguished. Accordingly, in the event the tenants were
enjoying occupancy rights in respect of the lands in their
possession, they could not be evicted therefrom by
virtue of the Notification published under Section 6 of the
2006 Act. However, the protection under Section 16 will
be available only in respect of evacuee property after a
determination to such effect is made. A unilateral
declaration is clearly opposed to the principles of natural
justice and administrative fair play and cannot be
supported. [Para 32] [899-C, F-H; 900-A]
2. The Notification published on 21st November,
1980, under Section 6 of the 2006 Act, declaring the lands
under the possession of the Appellants to be vested in
F the Custodian of Evacuee Property, stood vitiated, as the
appellants had been denied an opportunity of explaining
that they were not mere occupants of the property in
question, but tenants thereof, in which case, neither the
provisions of Rule 9 nor Rule 13-C of the 2008 Rules
G would have any application to the facts of this case. [Para
34] [900-C-D]
H
3. Apart from the above, the Settlement entered into,
was dependent on several factors, including the fact that
the occupants of the lands in question had surrendered
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS.
885
22 kanals of prime land out of 37 kanals and 5 marlas in
favour of the Custodian Department while remaining in
possession of 15 kanals and 5 marlas, which were to be
settled with them. While, on the one hand, the State
authorities took advantage of the Settlement and
constructions were raised on the surrendered lands, a
stand was later taken on behalf of the State Government
that the Settlement stood vitiated on account of noncompliance with the provisions of Rule 13-C of the 2008
Rules. The fact situation of this case is different from the
circumstances contemplated under Rule 13-C of the 2008
Rules. In the present case, the lands covered by the
Settlement were not vacant and were not, therefore,
within the ambit of Rule 13-C when the Settlement was
at the gestation stage. It is only under the Settlement that
the claims and rights, if any, of the writ petitioners were
required to be surrendered and, therefore, the question
of actual surrender of possession of 22 kanals of land out
of 37 kanals and 5 marlas, was to follow, leaving a
balance of 15 kanals and 5 marlas to be allotted to the
occupancy rights and tenants-at-will in respect thereof.
[Para 35] [900-E-H; 901-A-B]
4. The special facts of the case set the present
Agreement/Settlement apart from the cases of grant of
lease of vacant lands in terms of Rule 13-C and has,
therefore, to be treated differently. Firstly, as the lands
were not vacant, the very first criterion of Rule 13-C, was
not satisfied and the lease of the lands were to be granted
as part of the settlement packet, which included
surrender of 22 kanals of prime land. In the special facts
of this case, Rule 13-C of the 2008 Rules would have no
application to the Settlement arrived at between the
parties and the same were not, therefore, vitiated for not
putting the lands to auction to determine the premium to
be paid for the leases to be granted in respect thereof. It
was nobody’s case that the Settlement was the outcome
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[2013] 1 S.C.R.
of any fraud or was unlawful and the same, having been
signed and acted upon, was binding on the parties and
could not be withdrawn unilaterally. [Para 36] [901-B-E]
5. The Settlement arrived at between the parties and
filed
before the High Court for acceptance is lawful and
B
within the scope of Sub-Rule (3) of Order 23 of the Code
of Civil Procedure. It cannot be held that the Settlement
was contrary to the provisions of Rule 13-C of the 2008
Rules. The High Court shall proceed to pass appropriate
orders for acceptance of the out-of-Court settlement and
C
for adjustment of the rights of the parties in terms thereof.
[Para 37] [901-F-G, H; 902-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 67 of 2013.
D
D
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From the Judgment & Order dated 25.03.2008 of the High
Court of Jammu & Kashmir at Srinagar in CMP Nos. 128 and
525 of 2006 in LPA No. 169 of 2004.
WITH
C.A. Nos. 8-9 of 2013.
Bhaskar Gupta, Zaffar Ahmad Shah, Purnima Bhat for the
Appellants.
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F
Sunil Fernandes, Vernika Tomar, Astha Sharma, Insha Mir
for the Respondents.
The Judgment of the Court was delivered by
ALTAMAS KABIR, CJI. 1. Leave granted.
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2. The disputes between the parties relate to lands
measuring 37 Kanals 5 marlas comprised in several survey
numbers forming the subject matter of OWP No. 480 of 2003
and OWP No. 454 of 2005. On 21st November, 1980, the
H Custodian of Evacuee Property, Kashmir, issued a Notification
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS. [ALTAMAS KABIR, CJI.]
887
under Section 6 of the Jammu and Kashmir State Evacuees’
(Administration of Property) Act, 2006, hereinafter referred to
as “the 2006 Act”, declaring the aforesaid land to be evacuee
property, being in the ownership of one Qamar-ud-Din and
other evacuees. Inasmuch as, the writ petitioners in OWP No.
480 of 2003, claiming to the tenants-at-will of the land involved
in the writ petition, commenced earth filling, they were stopped
from doing so by the Evacuee Department. It is the case of the
writ petitioners that when they made inquiries, they were able
to lay their hands on records indicating that the lands measuring
11 kanals 6 marlas out of the land comprised in the said survey
numbers had been taken over by the Evacuee Department and
placed at the supurdnama of the Custodian vide three seizure
memos dated 22nd January, 2003 and 1st February, 2003.
Claiming that they were in possession of the land in the capacity
of tenants-at-will since before the aforesaid Act came to be
enacted, the petitioner in OWP No. 480 of 2003 prayed for the
following reliefs:-
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1. Notification dated 21.11.1980
3. Communication No.CG(EP)1020/ 2003/ 167Misc. K dated 23.1.2003
4. Three seizure memo dated 2.2.2003
B
6. Communication No. DFI/SG/378 dated
22.2.2003
C
(iv) That by an appropriate writ, direction or order including
a writ in the nature of prohibition respondents be restrained
from interfering in the rights of possession of the petitioners
in the land and in their levelling of land and from fencing.
(v) ........”
(ii) it be declared that Section 3 of the Agrarian Reforms
Act, 1976 in so far as it excludes the application of
Sections 4 and 8 of the tenants of evacuee land is ultra
vires the Constitution.
2. Communication No. CEPS/GE/2002/2766-70
dated 17.12.2002.
[2013] 1 S.C.R.
5. Communication No. CEPE-JE/2002/3347-50
dated 6.2.2003
“(i) it be declared that Section 6 of the J&K Evacuee
(Administration of Property) Act, 2006 is unconstitutional;
(iii) That by an appropriate writ, direction or order including
the writ in the nature of certiorari following notification/
communication be quashed:-
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Along with the writ petition, the petitioners also filed a
miscellaneous petition seeking interim relief in which it was
D ordered that the Respondents were not to dispossess the
petitioners from the lands in dispute, till the next date. The
petitioners were also restrained from raising any construction
or changing the nature and character of the said lands during
the said period. However, when during the pendency of the writ
E petition, the Custodian started construction of a shopping
complex, in violation of the said order of injunction, the
petitioners filed another CMP in which notice was issued on
22nd April, 2004, returnable within four weeks, and till then the
parties were directed to maintain status quo. Subsequently, by
F an order dated 30th September, 2004, the Registrar (Judicial)
of the High Court was appointed as Commissioner to visit and
submit a report which he did on 7th October, 2004.
3. On receipt of the report and on being satisfied that
construction work had been undertaken by the Custodian on
G
the aforesaid lands and was being proceeded with, the High
Court by its order dated 19th November, 2004, restrained the
Respondents from raising any construction on the spot. Since
its earlier orders had been violated by the Custodian, the
Station House Officer of the concerned Police Station was
H
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS. [ALTAMAS KABIR, CJI.]
889
directed to see that the order of the Court was duly complied
with, till the petition was considered for admission, or until
further orders.
4. Aggrieved by the aforesaid order of the learned Civil
Judge, the Custodian of Evacuee Property filed LPA No. 169
of 2004. Other writ petitioners, who also claimed to be in
possession of their lands as tenants-at-will and as “protected
tenants”, have also challenged the validity of the provisions of
Section 6 of the Jammu and Kashmir Evacuee (Administration
of Property) Act, 2006 and Section 3 of the Agrarian Reforms
Act, 1976, insofar as it excludes the application of Sections 4
and 8 to the tenants of evacuee properties.
5. While the matters were pending, serious efforts were
made by the parties for an out of court settlement which
ultimately fructified in terms of a settlement which was submitted
before the Court by way of CMP No. 128 of 2006. The
Settlement presented before the Court was duly signed by the
Custodian of Evacuee Property, Kashmir and by all the writ
petitioners and their counsel. While the above miscellaneous
petition was pending consideration, the Advocate General filed
an application on 23rd May, 2006, praying that the Settlement
be not accepted, which application was later withdrawn. In the
meantime, there was a change in the Government and the
Custodian was also transferred. The new Custodian took a
decision to refer the matter back to the State Government. On
10th October, 2006, the Custodian filed an application praying
for withdrawal of the Settlement contained in CMP No. 128 of
2006, and in support of such application, the Custodian placed
reliance upon a letter of the Revenue Department in which it
was stated that the Revenue Minister had accorded approval
for reversing the earlier decision taken on 27/28th March, 2005,
for entering into a settlement with the occupants of the evacuee
property. The said application for withdrawal of the Settlement
filed by the Custodian came to be registered as CMP No. 525
of 2006.
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6. The two miscellaneous petitions, being CMP No. 128
of 2006, filed by the parties for disposing of the appeal and
writ petitions in terms of the compromise and CMP No. 525 of
2006, filed by the Custodian for withdrawal of the Settlement,
came up for consideration before the Division Bench of the
B Hon’ble Mr. Justice H. Imtiaz Hussain and the Hon’ble Mr.
Justice Mansoor Ahmad Mir, on 15th September, 2007. As
indicated hereinbefore, the Hon’ble Judges differed on the relief
prayed for. While H. Imtiaz Hussain, J. held that the Settlement
violated Rule 13-C of the Jammu and Kashmir State Evacuees’
C (Administration of Property) Rules, 2008, hereinafter referred
to as “the 2008 Rules” and could not, therefore, be accepted
by the Court, Mansoor Ahmad Mir J. held that the aforesaid Rule
did not apply to the facts of the case and that it was nobody’s
case, that the Settlement arrived at was the outcome of fraud
or unlawful. His Lordship was also of the view that the
D
Settlement having been duly signed and acted upon by the
parties, the same was binding on the parties and could not be
withdrawn unilaterally. His Lordship, therefore, dismissed CMP
No. 525 of 2006, filed by the Custodian for withdrawal of the
Settlement and directed the listing of LPA No. 169 of 2004 and
E CMP No. 128 of 2006, for further arguments. In view of such
differences, the matter was referred to Hon’ble the Chief
Justice in terms of Rule 36(2) of the Jammu and Kashmir High
Court Rules, for referring the matter to a Third Judge.
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The learned third Judge framed three questions for
consideration, namely,
(a)
whether Rule 13-C of the 2008 Rules is attracted
to the Settlement arrived at bythe parties?
(b)
whether the Settlement contravenes Rule 13-C?
(c)
whether the Custodian can withdraw from the
Settlement unilaterally?
7. Before the learned third Judge it was sought to be urged
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS. [ALTAMAS KABIR, CJI.]
891
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on behalf of the State that the chunk of the land in question A
belonged to one Qamar-ud-Din who had two brothers, namely,
Ahmad Din and Imam Din. In the disturbances of 1947, Qamarud-Din left the State and became an evacuee and his property
was declared as evacuee property. In 1949 or 1950 there was
no such record available in the Custodians Department. B
Subsequently, Ahmad Din submitted three applications dated
11th Assuj 2009, before the Custodian of Evacuee properties
with a request that three bungalows along with the premises be
declared as non-evacuee property as the entire property was
held by the three brothers, Qamar-ud-Din, Ahmad Din and C
Imam Din. The said three applications were dismissed on
grounds of default on 28th July, 1956. An application for review
of the said order was filed on 20th November, 1956, which was
disposed of by the Custodian by his Order dated 5th
September, 1963, whereby the close relatives of the evacuees D
were appointed as managers of the properties provided they
gave an undertaking that they would submit yearly accounts of
income and expenditure to the Department and deposit the
income from the properties regularly so that the same could be
credited against the names of the evacuees. It was, therefore,
E
contended on behalf of the State that in terms of the above
Orders, the property came under the control of the Evacuee
Department and was being administered through its allottees
and managers appointed by it. It was also the stand of the State
that once the Custodian came into control of the evacuee
properties, he decided to construct a Shopping Mall over the F
land and allotted the work of construction to a contractor, who
started raising the construction thereupon. It was also urged that
notwithstanding the claim of the writ petitioners to be in
possession of the lands as tenants, their rights, if any, in the
land, were extinguished once the Evacuee Property Act came G
into effect and in any case by virtue of the declaration issued
under Section 6 of the 2006 Act.
8. It was also the case of the State that any allotment of
lands belonging to the State could not have been settled without
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complying with the provisions of Rule 13-C of the 2008 Rules
and such contravention invalidated the Settlement which was,
therefore, illegal and was rightly declared to be so by H. Imtiaz
Hussain, J.
On the other hand, it was contended by Mr. Shah,
appearing for the writ petitioners, that the Settlement between
the parties was in the nature of a contract and had been arrived
at by the parties who enjoyed the freedom to contract. It was
also submitted by him that Rule 13-C could have applied if the
land to be allotted was vacant. According to Mr. Shah, since
C
the writ petitioners were holding the land as tenants, it was not
vacant for the purposes of Rule 13-C of the Rules. According
to Mr. Shah, the views expressed by the Hon’ble Justice
Mansoor Ahmad Mir was in consonance with Rule 13-C, which
in the facts of the case, could not have any application to the
D lands in question.
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9. It was also contended by Mr. Shah that even assuming
that Rule 13-C was applicable, even then there was no violation
of its provisions as the premium was fixed in the present case
by taking into consideration the fact that the writ petitioners
were surrendering all their rights in respect of the whole land.
The premium was fixed by the members of a committee headed
by none else than the Minister-in-Charge of the Custodian
Department. Mr. Shah also submitted before the learned third
Judge that the rate of Rs.30 lakhs per kanal, as indicated by
the Appellants, was not based on any relevant material.
10. As mentioned hereinbefore, the controversy in this
case related to the applicability of Rule 13-C in regard to the
land in question.
In his judgment and order dated 25th March, 2008, the
learned third Judge, Y.P. Nargotra. J. agreed with the view
taken by H. Imtiaz Hussain, J. that the parties had violated Rule
13-C of the above-mentioned Rules and the Custodian was,
H therefore, competent to unilaterally withdraw the same. The
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS. [ALTAMAS KABIR, CJI.]
893
894
Learned Judge came to such a conclusion on the ground that
in terms of the Settlement arrived at, the writ petitioners would
have to surrender all their rights over the entire land, which
would render the land vacant within the meaning of Rule 13-C.
A
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11. On the question as to whether the Settlement
contravened Rule 13-C, the learned third Judge was of the view
that the premium to be paid for the lease to be granted to the
respondents/writ petitioners under the Settlement had not been
determined by putting the lease to an open auction which was
in contravention of the mandatory requirement of Rule 13-C. The
learned Judge, therefore, held that the Settlement contravened
Rule 13-C on the point of determining the premium payable.
B
B
12. On the third question as to whether the Custodian could
withdraw from the Settlement unilaterally, the learned third
Judge held that Rule 3 of Order 23 CPC, which related to
compromise of suits, would have application provided it was
proved to the satisfaction of the Court that the suit had been
adjusted wholly or in part by any lawful agreement or
compromise. In such case, the Court would have the discretion
to order such agreement or compromise to be recorded and
shall pass a decree in accordance therewith in so far as it
related to the parties to the suit. The learned third Judge took
note of the Explanation to Rule 3 of Order 23 CPC, which
provides that an agreement or compromise which is void or
voidable under the Contract Act shall not be deemed to be
lawful within the meaning of the Rule. Accordingly, in terms of
the above Explanation, an agreement not found to be lawful,
could be rejected by the Court for the purpose of passing a
decree.
The learned third Judge then referred to Section 23 of the
Contract Act, 1872, whereby any agreement which the Court
regards as immoral or opposed to public policy, is void. The
learned third Judge held that the Settlement was directly hit by
Section 23 of the Contract Act as it defeated the object of Rule
13-C and was, therefore, unlawful for the purposes of Rule 3
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of Order 23 CPC. The Learned Third Judge held that the
Settlement being unlawful, the Custodian was entitled to
withdraw from the Settlement unilaterally. Agreeing with the
views expressed by H. Imtiaz Hussain, J., the learned third
Judge observed that by consent or agreement, the parties
cannot achieve what is contrary to law and that the Settlement
arrived at between the parties could not be accepted.
13. As a result of the above, while the two miscellaneous
petitions were disposed of by the High Court, LPA No. 169 of
2004 and OWP No. 480 of 2003, filed by the Appellants
challenging the Notification dated 21st November, 1980, are
still pending decision in the High Court.
14. These two Appeals arise from the final judgment and
order dated 25th March, 2008, passed by the learned third
Judge of the Jammu & Kashmir High Court at Srinagar, in the
said miscellaneous applications.
15. Briefly stated, the grievance of the Appellants is
directed against the order passed by H. Imtiaz Hussain, J.,
holding that the Settlement violated Rule 13-C of the 2008
Rules and could not, therefore, be accepted by the Court.
16. Appearing for the Appellants, Mr. Zaffar Ahmad Shah,
learned senior counsel, reiterated the submissions made
before the High Court and submitted that, although, the
F Evacuee Department issued the Notification dated 21st
November, 1980, the same was neither gazetted nor
implemented till 1999, when an entry was made in the Revenue
Records in that regard. Mr. Shah urged that all the Appellants
were occupancy tenants in respect of the lands in which they
G were in possession and such possession was protected under
Section 16 of the 2006 Act. The impugned order of the
Custodian General, being contrary to the said provisions, was
illegal and liable to be quashed.
H
17. Mr. Shah contended that the lands in question and the
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS. [ALTAMAS KABIR, CJI.]
895
lands comprised in the surrounding areas were agricultural
lands and had been utilised for cultivation of paddy for decades.
There was a change in user of the surrounding lands, when a
bye-pass road and a new airport was constructed. As a result
of such developments and the expansion of the city, a large
number of residential houses and commercial establishments
came to be constructed in and around the area called Hyder
Pora. On account of such unrestrained construction activities,
the level of land used in construction work was raised
considerably on account of earth filling. The lands of the
Appellants, on the other hand, continued to be low-lying and
gradually became receptacles of water, making them unfit for
cultivation. In order to render the lands usable, the Appellants
also resorted to earth filling to prevent collection and stagnation
of water. It is, at this stage, that the functionaries of the Evacuee
Department intervened and stopped the Appellants continuing
with earth filling of the lands in question.
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18. Mr. Shah submitted that after purported ex parte
enquiries were made by the Custodian General’s Office, letters
were issued to the Custodian of Evacuee Property directing him
to resume possession of the lands under the occupation of the E
Appellants. However, the Appellants were kept completely in
the dark regarding such enquiry and the procedure adopted by
the Office of the Custodian General, in arriving at a final
conclusion regarding the status of the land behind the back of
the Appellants, was without legal sanction and was liable to be F
quashed.
19. Mr. Shah urged that the Appellants and their
predecessors-in-interest had been holding and possessing the
lands in question much before 14th August, 1947, in their
G
capacity as tenants and are, therefore, protected in law against
any action of the Respondents. Mr. Shah urged that, although,
the Respondents claimed that the property in question belongs
to one Qamer-ud-Din, he was never in possession of the lands
as on 1st March, 1947, or on 14th August, 1947 and the
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predecessors-in-interest of the Appellants were all along in
occupation of the property as tenants and, at no stage, did they
cease to occupy the said property.
20. Mr. Shah urged that under Section 5 of the 2006 Act,
all evacuee property situated in the State would be deemed to
have vested in the Custodian. However, in order to vest in the
Custodian, the properties had to be evacuee property. Mr. Shah
submitted that in the instant case, Qamer-ud-Din was not an
evacuee within the meaning of Section 2(c) of the above Act,
nor did he acquire the property in the manner indicated in
Section 2(c)(iii) thereof. Mr. Shah submitted that the property
has not been registered as evacuee property by the Custodian,
in terms of Section 5 of the 2006 Act.
21. The learned counsel then submitted that Section 6 of
the 2006 Act was unconstitutional and was liable to be struck
down. It was urged that before issuing a notification under
Section 6 of the 2006 Act, it was only incumbent upon the
authorities to ensure that the principles of natural justice were
followed.
22. Mr. Shah contended that the 2008 Rules provide that
in respect of any evacuee property which vests in the
Custodian, but is in the possession of some other person
having no lawful title to such possession, the Custodian may
evict the person from such property in the manner indicated in
the 2006 Act and the 2008 Rules.
23. Mr. Bhaskar Gupta, learned Senior Advocate, who
appeared for the Appellants, Ghulam Mohammad Dar and
others, emphasised the use of the expression “vacant” in Rule
G 13-C of the 2008 Rules. Mr. Gupta submitted that the
expression “vacant” has been defined in Black’s Law Dictionary
to mean “empty, unoccupied, absolutely free, and unclaimed”.
Accordingly, land in possession of any person prior to coming
into force of the Act and the Rules, could not be said to be
H
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS. [ALTAMAS KABIR, CJI.]
897
vacant land and, accordingly, Rule 13-C of the 2008 Rules
would have no application to the lands in question at all.
24. Mr. Gupta submitted that in terms of the Settlement
which has been arrived at between the Appellants and the State
agencies, the Appellants had surrendered possession of 22
kanals of prime land out of 37 kanals and 5 marlas in favour of
the Custodian Department and the Appellants continued to be
in possession of the remaining lands. Furthermore, according
to Mr. Gupta, by the raising of constructions on the surrendered
land, the Settlement had been duly acted upon and the State
could not, therefore, now resile therefrom. It was no longer open
for the State to contend that they had wrongly arrived at the
Settlement. Mr. Gupta also pointed out that the fact that the
Appellants were and continued to be in possession of the lands
in question, would be evident also from a letter written on behalf
of the State Government, in its Revenue Department, to the
Custodian General on 10th October, 2006 regarding the
Settlement to be filed in LPA No. 169 of 2004 and OWP No.
480 of 2003. It was pointed out that, in the said letter, the State
Government had acknowledged the fact that the Appellants
were the occupants of the property in question, even though
such occupation was referred to as illegal. Mr. Gupta submitted
that what was important was the acknowledgement of the fact
that the Appellants were in actual possession of the lands in
question.
25. It was lastly submitted that Rule 3 of Order 23 CPC
permits compromise of suits and where it is proved to the
satisfaction of the Court that the same had been adjusted wholly
or in part by any lawful agreement or compromise in writing and
signed by the parties, the Court shall order such agreement,
compromise or satisfaction to be recorded and then proceed
to pass a decree.
26. Mr. Sunil Fernandes, learned counsel, who appeared
for the State of Jammu and Kashmir, submitted that the two writ
petitions regarding resumption of possession of the lands in
898
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B
C
C
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SUPREME COURT REPORTS
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question were still pending before the High Court and the validity
of Section 6 of the 2006 Act was the subject matter of challenge
therein. The ambit of the dispute between the parties before
the High Court was confined to the question of validity of Section
6 of the 2006 Act, as also the challenge to the Settlement arrived
at between the parties.
27. Mr. Fernandes urged that the view of the learned third
Judge represented the majority view in the matter, which did
not warrant any interference. These appeals were, therefore,
liable to be dismissed.
28. The main plank of the submissions made on behalf of
the Appellants is that the lands in question are not evacuee
property, and, that, the Appellants were tenants thereof since
before the Act came into force. In fact, it is the case of some
of the Appellants that their predecessors-in-interest were in
occupation of the lands in question even prior to 1st March,
1947, and 14th August, 1947, which clearly excluded the
Appellants from the operation of the provisions of the 2006 Act
and the 2008 Rules. On the other hand, as “protected tenants”,
the Appellants were entitled to continue in possession of the
lands and, particularly so, in view of the Settlement arrived at
between the Appellants and the State authorities.
29. That, there was a settlement arrived at between the
parties is not in issue. It is also not in issue that after filing the
F Settlement in Court and asking the Court to take action
thereupon, an application was made on behalf of the Custodian
of Evacuee Property, Jammu and Kashmir, for leave to
withdraw CMP No. 128 of 2006 on the ground that the Chief
Minister had reversed the earlier decision taken on 27/28th
G March, 2005 and, that, accordingly, the deponent, in the
affidavit, was not competent to enter into the Settlement, as the
decision to do so had been withdrawn by the competent
authority.
H
30. The question to be decided is whether having entered
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS. [ALTAMAS KABIR, CJI.]
899
into a Settlement, which stood concluded and had been acted
upon by the State Government by raising constructions on the
surrendered lands, could the Settlement have been withdrawn
unilaterally only at the instance of the State Government?
31. The other branch of submissions made on behalf of
the Appellants, which merits consideration, is whether on
Section 8 of the 2006 Act having been declared ultra vires, a
party could be left without a remedy as the right to challenge a
Notification issued under Section 6 stood extinguished by such
declaration?
900
A
B
C
32. In addition to the above, the provisions of Section 16
of the 2006 Act may also be noticed. Section 16, which deals
with occupancy and tenancy rights provides as follows :“16. Occupancy or tenancy right not to be D
extinguished - Notwithstanding anything contained in any
other law for the time being in force, the right of occupancy
in any land of an evacuee which has vested in the
Custodian shall not be extinguished, nor shall an evacuee
or the Custodian, whether as an occupancy tenant, or a
E
tenant for a fixed term of any land, be liable to be ejected
or deemed to have become so liable on any ground
whatsoever for any default of the Custodian.”
It is clear from Section 16 that on account of the nonobstante clause, the provisions of Section 16 will prevail over F
any other law for the time being in force and the right of
occupancy in any land of an evacuee shall not be extinguished.
Accordingly, in the event the tenants were enjoying occupancy
rights in respect of the lands in their possession, they could not
be evicted therefrom by virtue of the Notification published G
under Section 6 of the 2006 Act.
However, the protection under Section 16 will be available
only in respect of evacuee property after a determination to such
effect is made. A unilateral declaration is clearly opposed to
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A the principles of natural justice and administrative fair play and
cannot be supported.
33. As far as the second limb of Mr. Shah and Mr. Gupta’s
submissions is concerned, the same being the subject matter
of the writ proceedings pending before the High Court, it would
B not be proper on our part to express any opinion in respect
thereof.
34. Having considered the submissions made on behalf
of the respective parties, we are inclined to accept the
C submission made on behalf of the Appellants that the
Notification published on 21st November, 1980, under Section
6 of the 2006 Act, declaring the lands under the possession of
the Appellants to be vested in the Custodian of Evacuee
Property, stood vitiated, as the Appellants had been denied an
D opportunity of explaining that they were not mere occupants of
the property in question, but tenants thereof, in which case,
neither the provisions of Rule 9 nor Rule 13-C of the 2008 Rules
would have any application to the facts of this case.
35. Apart from the above, the Settlement which was
E entered into between the writ petitioners and the State, was
dependent on several factors, including the fact that the
occupants of the lands in question had surrendered 22 kanals
of prime land out of 37 kanals and 5 marlas in favour of the
Custodian Department while remaining in possession of 15
F kanals and 5 marlas, which were to be settled with them. While,
on the one hand, the State authorities took advantage of the
Settlement and constructions were raised on the surrendered
lands, a stand was later taken on behalf of the State Government
that the Settlement stood vitiated on account of non-compliance
G with the provisions of Rule 13-C of the 2008 Rules. The fact
situation of this case is different from the circumstances
contemplated under Rule 13-C of the 2008 Rules. In the present
case, the lands covered by the Settlement were not vacant and
were not, therefore, within the ambit of Rule 13-C when the
H Settlement was at the gestation stage. It is only under the
GHULAM NABI DAR & ORS. v. STATE OF J&K &
ORS. [ALTAMAS KABIR, CJI.]
901
Settlement that the claims and rights, if any, of the writ
petitioners were required to be surrendered and, therefore, the
question of actual surrender of possession of 22 kanals of land
out of 37 kanals and 5 marlas, was to follow, leaving a balance
of 15 kanals and 5 marlas to be allotted to the occupancy rights
and tenants-at-will in respect thereof.
902
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A
B
B
36. The special facts of the case set the present
Agreement/Settlement apart from the cases of grant of lease
of vacant lands in terms of Rule 13-C and has, therefore, to be
treated differently. Firstly, as the lands were not vacant, the very
first criterion of Rule 13-C, was not satisfied and the lease of C
the lands were to be granted as part of the settlement packet,
which included surrender of 22 kanals of prime land. We are
inclined to agree with the views expressed by Mansoor Ahmad
Mir, J. that in the special facts of this case, Rule 13-C of the
2008 Rules would have no application to the Settlement arrived D
at between the parties and the same were not, therefore,
vitiated for not putting the lands to auction to determine the
premium to be paid for the leases to be granted in respect
thereof. As observed by His Lordship, it was nobody’s case
that the Settlement was the outcome of any fraud or was unlawful E
and the same, having been signed and acted upon, was
binding on the parties and could not be withdrawn unilaterally.
37. In our view, the Settlement arrived at between the
parties and filed before the High Court for acceptance by way F
of CMP No.128 of 2006 is lawful and within the scope of SubRule (3) of Order 23 of the Code of Civil Procedure. The
decision holding the Settlement to be contrary to the provisions
of Rule 13-C of the 2008 Rules, as held by H. Imtiyaz Hussain,
J. on 15th September, 2007, and affirmed by the third learned
G
Judge, Y.P. Nargotra, J. by his judgment and order dated 25th
March, 2008, cannot be sustained and is set aside.
Consequently, the view expressed by Mansoor Ahmad Mir, J.
is upheld. CMP No.525 of 2006 is, accordingly, dismissed and
CMP No.128 of 2006 is allowed. The High Court shall proceed
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[2013] 1 S.C.R.
to pass appropriate orders for acceptance of the out-of-Court
settlement and for adjustment of the rights of the parties in terms
thereof in the LPA as well as in OWP No.480 of 2003 and OWP
No.454 of 2005.
38. Since, in these appeals we have only been called upon
to consider as to whether the Settlement arrived at between the
parties stood vitiated on account of non-compliance with the
provisions of Rule 13-C of the 2008 Rules, we have not
expressed any opinion with regard to the second limb of the
submissions advanced regarding the constitutionality of
Section 6 of the 2006 Act. The said issue is, accordingly, left
to the High Court for decision. We make it clear that whatever
has been expressed in this judgment, shall not in any way
prejudice and/or affect the outcome of the decision of the High
Court in the said matter.
39. The appeals are, accordingly, disposed of. There will,
however, be no order as to costs.
B.B.B.
Appeals disposed of.
[2013] 1 S.C.R. 903
HARDEVINDER SINGH
v.
PARAMJIT SINGH & OTHERS
(Civil Appeal No. 102 of 2013)
JANUARY 7, 2013
904
A
B
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Code of Civil Procedure, 1908 – ss. 96 and 100 –
Second appeal – Person aggrieved – Legal injury – Plaintiff
claiming to be a co-sharer in respect of the property in
question filed suit challenging a Will – Defendant no.5, brother
of the plaintiff, supported his case — In appeal at the instance
of defendant nos. 1 to 4, the plaintiff entered into a settlement
with the contesting defendants who had preferred the appeal
and the appellate court set aside the decree passed by the
trial court – Second appeal filed by defendant no.5 held not
maintainable by the High Court – Held: If a person is
prejudicially or adversely affected by the decree, he can
maintain an appeal – On facts, the decree prejudicially affects
the defendant No.5 and, therefore, he could have preferred
an appeal – The grievance pertained to the nature and
character of the property and the trial court had decreed the
suit – He stood benefited by such a decree – The same
having been unsettled, the benefit accrued in his favour
became extinct – He had suffered a legal injury by virtue of
the overturning of the decree – His legal right was affected –
Indubitably, appellant was a person aggrieved and was
prejudicially affected by the decree and, hence, the appeal
could not have been thrown overboard treating as not
maintainable – Matter remitted to High Court.
[2013] 1 S.C.R.
A case. In an appeal at the instance of defendant nos. 1 to
4, the plaintiff entered into a settlement with the
contesting defendants who had preferred the appeal and
the appellate court set aside the judgment and decree
passed by the trial court and dismissed the suit. The
B second appeal filed by defendant no.5 was held not
maintainable by the High Court, and therefore the present
appeal.
Allowing the appeal, the Court
C
D
E
F
G
The plaintiff claiming to be a co-sharer in respect of
the property in question filed suit challenging a Will. The
defendant no.5, the brother of the plaintiff, supported his
903
SUPREME COURT REPORTS
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C
HELD: 1.1. Sections 96 and 100 of the Code of Civil
Procedure, 1908 make provisions for preferring an appeal
from any original appeal or from a decree in an appeal
respectively. The aforesaid provisions do not enumerate
the categories of persons who can file an appeal. If a
D judgment and decree prejudicially affects a person,
needless to emphasize, he can prefer an appeal. [Para 13]
[911-C-D]
1.2. If a person is prejudicially or adversely affected
by the decree, he can maintain an appeal. In the present
E
case, the plaintiff claiming to be a co-sharer filed the suit
and challenged the will. The defendant No.5, the brother
of the plaintiff, supported his case. In an appeal at the
instance of the defendant Nos. 1 to 4, the judgment and
decree was overturned. The plaintiff entered into a
F settlement with the contesting defendants who had
preferred the appeal. Such a decree prejudicially affects
the defendant No. 5 and, therefore, he could have
preferred an appeal. The grievance pertained to the
nature and character of the property and the trial court
G had decreed the suit. He stood benefited by such a
decree. The same having been unsettled, the benefit
accrued in his favour became extinct. He had suffered a
legal injury by virtue of the over turning of the decree. His
legal right has been affected. [Para 20] [914-E-H; 915-A]
H
HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 905
1.3. Indubitably, the appellant was a person
aggrieved and was prejudicially affected by the decree
and, hence, the appeal could not have been thrown
overboard treating as not maintainable. The judgment of
the High Court is set aside, the second appeal preferred
by the appellant is treated to be maintainable in law and
the matter is remitted to the High Court. [Paras 21, 22]
[915-E-F]
906
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B
E
Smt. Ganga Bai v. Vijay Kumar and Others AIR 1974 SC
1126: 1974 (3) SCR 882 – referred to.
Case Law Reference:
1974 (3) SCR 882
referred to
Para 6, 9
2003 (2) SCR 22
relied on
Para 6, 18, 19
1971 (3) SCR 247
relied on
Para 13
1974 (2) SCC 70
relied on
Para 14
(2003) 1 SCC 34
relied on
Para 15
2002 (4) Suppl. SCR 43 relied on
Para 17
1971 (1) SCR 146
Para 20
relied on
[2013] 1 S.C.R.
1967 SCR 153
relied on
Para 19
2012 (11) SCALE 39
held applicable
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 102
of 2013.
Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties
Private Ltd. AIR 1971 SC 374: 1971 (3) SCR 247; State of
Punjab v. Amar Singh and Another AIR 1974 SC 994: 1974 C
(2) SCC 70; Baldev Singh v. Surinder Mohan Sharma and
Others (2003) 1 SCC 34: 2002 (4) Suppl. SCR 43; Sahadu
Gangaram Bhagade v. Special Deputy Collector,
Ahmednagar and Another (1970) 1 SCC 685: 1971 (1) SCR
146; Banarsi and Others v. Ram Phal AIR 2003 SC 1989: D
2003 (2) SCR 22 and Phoolchand v. Gopal Lal AIR (1967)
SC 1470: 1967 SCR 153 – relied on.
Ayaaubkhan Noorkhan Pathan v. The State of
Maharashtra & ors. 2012 (11) SCALE 39 – held applicable.
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SUPREME COURT REPORTS
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G
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B
From the Judgment & Order dated 28.7.2011 of the High
Court of Punjab & Haryana at Chandigarh in RSA No. 85 of
2007.
C
Vipin Gogia, Jaspreet Gogia, Brijendra Singh for the
Appellant.
K.K. Mohan, Anand Mishra, Amrender K. Singh, Dr. Vipin
Gupta, for the Respondents.
D
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. One Sarabjit Singh filed Civil Suit No. 29 of 1995 for
possession of the suit land to the extent of his share treating
E the will alleged to have been executed in favour of the defendant
Nos. 1 to 4 as null and void with the consequential prayer for
restraining them from alienating the suit property in any manner.
It was set forth in the plaint that the suit land in the hands of his
father, Shiv Singh, was ancestral coparcenary and Joint Hindu
F Family property and he, along with his brothers, the defendant
Nos. 5 and 6, constituted a Joint Hindu Family with the father
and mother. It was alleged that the defendant Nos. 1 to 4, on
the basis of a forged will, forcibly took possession of the land.
It was set forth that by virtue of the will, the plaintiff and the
G defendant Nos. 5 and 6, the co-owners, have been deprived
of the legal rights in the suit land. It was the case of the plaintiff
that the will was not executed voluntarily by his father, Shiv
Singh, and it was a forged one and, therefore, no right could
flow in favour of the said defendants.
H
HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 907
[DIPAK MISRA, J.]
3. The defendant Nos. 1 to 4 entered contest and supported
the execution of the will on the basis that it was voluntary and
without any pressure or coercion. That apart, it was contended
that the rights of defendant No. 5 had not been affected as a
registered gift was executed on 31.3.1980 by late Shiv Singh.
The claim of the plaintiff was strongly disputed on the ground
that the will had already been worked out since the revenue
records had been corrected. The defendant No. 6 resisted the
stand of the plaintiff contending, inter alia, that the property was
self-acquired and the execution of the will was absolutely
voluntary. The defendant No. 5 filed an independent written
statement admitting the claim of the plaintiff. It was set forth by
him that the suit land was ancestral, a Joint Hindu Coparcenary
property and his father Shiv Singh, being the Karta, had no right
to bequeath the same in favour of defendant Nos. 1 to 4 to the
exclusion of the other rightful owners. That apart, it was
contended that the will was vitiated by fraud. A prayer was made
to put him in possession of the suit land after carving out his
share.
908
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B
C
C
D
D
4. The learned trial Judge framed as many as four issues.
The plaintiff examined himself as PW-1 and tendered number E
of documents in evidence which were marked as Exts. P-1 to
P-17. The defendant Nos. 1 to 4 examined number of
witnesses and got seven documents exhibited. The defendant
No.5 supported the evidence led by the plaintiff. In rebuttal, the
plaintiff examined the Record Keeper of Medical College F
Rohtak as PW-2 and Dr. A.K. Verma as PW-3 and brought on
record four forms, Exts. P-18 to P-19A. The learned trial Judge,
on appreciation of the evidence brought on record, came to
hold that the suit land was a Joint Hindu Family property; that
defendant Nos. 1 to 4 had failed to dispel the suspicious G
circumstances in the execution of the will in favour of defendant
Nos. 1 to 4 and, hence, the will was null and void; that the
mutation did not create any impediment on the rights of the
plaintiff and other natural heirs of the testator; and that they are
entitled to get joint possession of the suit land as per their H
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
shares in accordance with the law of natural succession.
5. On an appeal being preferred by the three beneficiaries
of the will (as the original defendant No. 1 had died), the learned
appellate Judge came to hold that the property held by Shiv
Singh, the predecessor-in-interest of the parties to the suit, was
not ancestral, but self-acquired and, hence, he was competent
to alienate the same in any manner as he liked; that the will
dated 6.7.1989, Exh. D-2, in favour of original defendant No.
1, his wife who had expired by the time the appeal was filed
and the defendant Nos. 2 to 4, his grandsons, was validly
executed and that the finding recorded by the learned trial
Judge on that score was unsustainable. Be it noted, the learned
appellate Judge took note of the fact that Sarabjit Singh had
challenged the said will but, on account of settlement with the
appellants before the appellate court, had practically withdrawn
from the litigation. Being of this view, he set aside the judgment
and decree passed by the learned trial Judge and dismissed
the suit with costs.
6. The defendant No. 5 preferred R.S.A. No. 85 of 2007
before the High Court. The learned single Judge, upon hearing
the learned counsel for the parties and placing reliance on Smt.
Ganga Bai v. Vijay Kumar and Others 1 and Banarsi and
Others v. Ram Phal2, came to hold that the appeal was not
maintainable at the instance of defendant No. 5 under Section
100 of the Code of Civil Procedure, 1908 (for short “the Code”).
7. We have heard Mr. Vipin Gogia, learned counsel for the
appellant, and Mr. K.K. Mohan, learned counsel appearing for
the respondents.
G
H
8. At the very outset, we must state that the High Court has
accepted the preliminary objections raised by the respondents
as regards the maintainability of the appeal. While accepting
1.
AIR 1974 SC 1126.
2.
AIR 2003 SC 1989.
HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 909
[DIPAK MISRA, J.]
the preliminary objection, the High Court has opined that the
plaintiff and the defendant Nos. 1 to 4 and 6 had accepted the
judgment and decree; that the defendant No. 5 cannot be
regarded as an aggrieved party to assail the impugned decree
invoking the jurisdiction of the High Court under Section 100
of the Code; that appeal being a creature of the statute, the
right to appeal inheres in one and it stands in a distinct position
than that of a suit and, hence, no appeal could lie against a
mere finding for the simple reason that the Code does not
provide for such an appeal; and that the suit having been
dismissed by virtue of the dislodging of the decree by the first
appellate court, the regular second appeal could not be filed
by the defendant No. 5. Hence, the present appeal by the said
defendant-appellant.
9. As indicated earlier, to arrive at such a conclusion,
reliance was placed on the decision in Smt. Ganga Bai v. Vijay
Kumar and Others (supra) wherein a distinction was drawn
between the inherent right to file a suit unless the suit is
statutorily barred and the limitations in maintaining an appeal.
In that case, the defendant Nos. 2 and 3 had preferred an
appeal before the High Court challenging the finding recorded
by the trial court. Thereafter, a challenge was made partly to
the preliminary decree. This Court took note of the fact that the
appeal preferred by the said defendants was directed originally
not against any part of the preliminary decree but against a
mere finding recorded by the trial court that the partition was
not genuine. It was observed by this Court that to maintain an
appeal, it requires authority of law. After referring to Sections
96(1), 100, 104(1) and 105 of the Code, the Bench observed
as follows: “17. These provisions show that under the Code of Civil
Procedure, an appeal lies only as against a decree or as
against an order passed under rules from which an appeal
is expressly allowed by Order 43, Rule 1. No appeal can
lie against a mere finding for the simple reason that the
Code does not provide for any such appeal. It must follow
910
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B
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
that First Appeal No. 72 of 1959 filed by defendants 2 and
3 was not maintainable as it was directed against a mere
finding recorded by the trial court.”
10. Thereafter, the Court opined that the High Court mixed
up two distinct issues, namely, (i) whether the defendants 2 and
3 were competent to file an appeal if they were aggrieved by
the preliminary decree and (ii) whether the appeal as filed by
them was maintainable. It was opined that if the defendants 2
and 3 could be said to have been aggrieved by the preliminary
decree, it was certainly competent for them to challenge that
decree in appeal, but as they had not filed an appeal against
the preliminary decree, the question whether they were
aggrieved by that decree and could file an appeal therefrom
was irrelevant. The Bench held that the appeal was directed
against the finding given by the trial court which was against
them, hence, it was not maintainable. Be it noted, this Court
also addressed with regard to the issue whether defendant
Nos. 2 and 3 were aggrieved by the preliminary decree and
opined that the appeal was against a mere finding and the
preliminary decree, in fact, remained unchallenged for a long
period.
11. Another aspect which was addressed by the Bench
was whether the finding would operate as res judicata in the
subsequent proceeding. This Court observed that the finding
F recorded by the trial court that the partition was a colourable
transaction was unnecessary for the decision of the suit
because even if the court were to find that the partition was
genuine, the mortgage would only have bound the interest of
the father as the debt was not of a character which, under the
Hindu Law, would bind the interest of the sons. That apart, the
G
matter relating to the partition being not directly and
substantially in issue in the suit, the finding that the partition was
sham could not operate as res judicata so as to preclude a
party aggrieved by the finding from agitating the question
covered by the finding in any other proceeding.
H
HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 911
[DIPAK MISRA, J.]
12. On a keen scrutiny of the facts of the aforesaid case
and the dictum laid down therein, in our considered opinion, it
does not really apply to the case at hand, regard being had to
the obtaining factual matrix and further, the decision was
rendered before the amendment was brought into the Code
prior to 1976. Therefore, we have no hesitation in saying that
the High Court has fallen into error in placing reliance on the
said pronouncement.
912
A
A
B
B
13. Presently, it is apt to note that Sections 96 and 100 of
the Code make provisions for preferring an appeal from any
original appeal or from a decree in an appeal respectively. The C
aforesaid provisions do not enumerate the categories of
persons who can file an appeal. If a judgment and decree
prejudicially affects a person, needless to emphasize, he can
prefer an appeal. In this context, a passage from Smt. Jatan
Kanwar Golcha v. M/s. Golcha Properties Private Ltd.3 is worth D
noting: “It is well settled that a person who is not a party to the suit
may prefer an appeal with the leave of the appellate Court
and such leave should be granted if he would be
prejudicially affected by the judgment.”
14. In State of Punjab v. Amar Singh and Another 4,
Sarkaria, J., while dealing with the maintainability of an appeal
by a person who is not a party to a decree or order, has stated
thus: -
E
F
F
4.
H
15. In Baldev Singh v. Surinder Mohan Sharma and
Others5, a three Judge-Bench opined that an appeal under
Section 96 of the Code would be maintainable only at the
instance of a person aggrieved by and dissatisfied with the
judgment and decree. In the said case, while dealing with the
concept of ‘person aggrieved’, the Bench observed thus:“A person aggrieved to file an appeal must be one whose
right is affected by reason or the judgment and decree
sought to be impugned. It is not the contention of
Respondent 1 that in the event the said judgment and
decree is allowed to stand, the same will cause any
personal injury to him or shall affect his interest otherwise.”
16. Be it noted, in the said case, the challenge in appeal
was to the dissolution of marriage of the appellant therein and
his first wife which, this Court held, would have no repercussion
on the property in the suit and, therefore, the High Court was
not justified in disposing of the civil revision with the observation
that the revisionist could prefer an appeal.
17. In Sahadu Gangaram Bhagade v. Special Deputy
Collector, Ahmednagar and Another,6 it was observed that the
right given to a respondent in an appeal is to challenge the
G order under appeal to the extent he is aggrieved by that order.
The memorandum of cross-objection is but one form of appeal.
It takes the place of a cross appeal. In the said decision,
emphasis was laid on the term ‘decree’.
AIR 1971 SC 374.
AIR 1974 SC 994.
[2013] 1 S.C.R.
not be refused to a person who might have been made
ex nominee a party – see Province of Bombay v. W.I.
Automobile Association, AIR 1949 Bom 141; Heera Singh
v. Veerka, AIR 1958 Raj 181 and Shivaraya v.
Siddamma, AIR 1963 Mys 127; Executive Officer v.
Raghavan Pillai, AIR 1961 Ker 114. In re B, an Infant
(1958) QB 12; Govinda Menon v. Madhavan Nair, AIR
1964 Ker 235.”
D
E
“84. Firstly there is a catena of authorities which, following
the doctrine of Lindley, L.J., in re Securities Insurance Co.,
(1894) 2 Ch 410 have laid down the rule that a person who
is not a party to a decree or order may with the leave of G
the Court, prefer an appeal from such decree or order if
he is either bound by the order or is aggrieved by it or is
prejudicially affected by it. As a rule, leave to appeal will
3.
C
SUPREME COURT REPORTS
H
5.
(2003) 1 SCC 34.
6.
(1970) 1 SCC 685.
HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 913
[DIPAK MISRA, J.]
18. After the 1976 amendment of Order 41 Rule 22, the
insertion made in sub-rule (1) makes it permissible to file a
cross-objection against a finding. The difference is basically that
a respondent may defend himself without taking recourse to file
a cross-objection to the extent the decree stands in his favour,
but if he intends to assail any part of the decree, it is obligatory
on his part to file the cross-objection. In Banarsi and Others v.
Ram Phal (supra), it has been observed that the amendment
inserted in 1976 is clarificatory and three situations have been
adverted to therein. Category No. 1 deals with the impugned
decree which is partly in favour of the appellant and partly in
favour of the respondent. Dealing with such a situation, the
Bench observed that in such a case, it is necessary for the
respondent to file an appeal or take cross-objection against that
part of the decree which is against him if he seeks to get rid of
the same though he is entitled to support that part of the decree
which is in his favour without taking any cross-objection. In
respect of two other categories which deal with a decree
entirely in favour of the respondent though an issue had been
decided against him or a decree entirely in favour of the
respondent where all the issues had been answered in his
favour but there is a finding in the judgment which goes against
him, in the pre-amendment stage, he could not take any crossobjection as he was not a person aggrieved by the decree. But
post-amendment, read in the light of explanation to sub-rule (1),
though it is still not necessary for the respondent to take any
cross-objection laying challenge to any finding adverse to him
as the decree is entirely in his favour, yet he may support the
decree without cross-objection. It gives him the right to take
cross-objection to a finding recorded against him either while
answering an issue or while dealing with an issue. It is apt to
note that after the amendment in the Code, if the appeal stands
withdrawn or dismissed for default, the cross-objection taken
to a finding by the respondent would still be adjudicated upon
on merits which remedy was not available to the respondent
under the unamended Code.
914
A
A
B
B
C
C
D
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
19. At this juncture, we may usefully reproduce a passage
from Banarsi and Others (supra) wherein it has been stated
thus: “Sections 96 and 100 CPC make provision for an appeal
being preferred from every original decree or from every
decree passed in appeal respectively; none of the
provisions enumerates the person who can file an appeal.
However, it is settled by a long catena of decisions that to
be entitled to file an appeal the person must be one
aggrieved by the decree. Unless a person is prejudicially
or adversely affected by the decree he is not entitled to
file an appeal. See Phoolchand v. Gopal Lal 7, Jatan
Kumar Golcha v. Golcha Properties (P) Ltd. (supra) and
Ganga Bai v. Vijay Kumar (supra).) No appeal lies
against a mere finding. It is significant to note that both
Sections 96 and 100 CPC provide for an appeal against
decree and not against judgment.”
20. Though the High Court has referred to the said
pronouncement, yet it has not applied the ratio correctly to the
E facts. This Court has clearly stated that if a person is
prejudicially or adversely affected by the decree, he can
maintain an appeal. In the present case, as we find, the plaintiff
claiming to be a co-sharer filed the suit and challenged the will.
The defendant No. 5, the brother of the plaintiff, supported his
F case. In an appeal at the instance of the defendant Nos. 1 to
4, the judgment and decree was overturned. The plaintiff
entered into a settlement with the contesting defendants who
had preferred the appeal. Such a decree, we are disposed to
think, prejudicially affects the defendant No. 5 and, therefore,
he could have preferred an appeal. It is worthy to note that the
G
grievance pertained to the nature and character of the property
and the trial court had decreed the suit. He stood benefited by
such a decree. The same having been unsettled, the benefit
accrued in his favour became extinct. It needs no special
H
7.
AIR 1967 SC 1470.
HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 915
[DIPAK MISRA, J.]
emphasis to state that he had suffered a legal injury by virtue
of the over turning of the decree. His legal right has been
affected. In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan v. The State
of Maharashtra & Ors.8 wherein this Court has held thus: -
[2013] 1 S.C.R. 916
A
A
B
B
“A “legal right”, means an entitlement arising out of legal
rules. Thus, it may be defined as an advantage, or a
benefit conferred upon a person by the rule of law. The
expression, “person aggrieved” does not include a person
who suffers from a psychological or an imaginary injury; a
person aggrieved must therefore, necessarily be one, C
whose right or interest has been adversely affected or
jeopardized. (Vide: Shanti Kumar R. Chanji v. Home
Insurance Co. of New York, AIR 1974 SC 1719; and State
of Rajasthan & Ors. v. Union of India & Ors., AIR 1977
D
SC 1361).”
21. Though the said judgment was delivered in a different
context, yet it is applicable to the obtaining factual matrix regard
being had to the conception of legal injury. Thus, indubitably,
the present appellant was a person aggrieved and was
prejudicially affected by the decree and, hence, the appeal
could not have been thrown overboard treating as not
maintainable.
E
22. In view of the aforesaid premised reasons, we allow
the appeal, set aside the judgment of the High Court, treat the F
second appeal preferred by the present appellant to be
maintainable in law and remit the matter to the High Court with
a request to decide the appeal within a period of six months.
Needless to say, we have not expressed any opinion on any
of the aspects which pertain to the merits of the case. In the G
facts and circumstances of the case, the parties shall bear their
respective costs.
B.B.B.
8.
2012 (11) SCALE 39.
Appeal allowed.
H
STATE OF BIHAR AND OTHERS
v.
NIRMAL KUMAR GUPTA
(Civil Appeal No. 128 of 2013)
JANUARY 08, 2013
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
C
D
E
Bihar Excise (Settlement of Licences for Retail Sale of
Country/Spiced Country Liquor) Rules, 2004 – rr. 19, 20 and
24 – Settlement of excise shops in favour of auctionpurchaser – Default in payment of advance security – Despite
the default, licence issued – In view of the default, demand
for licence fee raised from the date of settlement till the date
of issuance of licence – High Court held that default would
be deemed to be condoned as the licence was issued despite
the default – Held: The purchaser failed to comply with r.19 –
The default cannot be deemed to be condoned in view of the
nature of trade in question – As per r. 24, the purchaser is
required to pay licence fee from the date of settlement –
Hence, the demand for licence fee is justified.
Pursuant to sale notification, excise shops were
settled in favour of the respondent on 5th July, 2006. The
respondent was required to pay 1/4th of the annual
licence fee as advance security money. He failed to do
F so in time. He deposited the requisite amount in three
instalments. Licence was issued on 5th July, 2006. Since
the respondent failed to comply with the conditions of the
licence ie. delay in payment of advance deposit, a
demand for licence fee was raised for the period
G commencing 5th June, 2006 to 5th July, 2006. High Court
allowed the writ petition of the respondent holding that
the default in payment of advance security amount would
be deemed to have been condoned in view of the fact
that despsite the default, licence was issued; and that the
916
H
STATE OF BIHAR v. NIRMAL KUMAR GUPTA
917
respondent was liable to pay from the date of issuance
of licence and not from the date of settlement. Hence the
present appeal.
918
A
Allowing the appeal, the Court
HELD: 1. The respondent was required to pay 1/4th
of the annual licence fee as advance security money but
he failed to do so in time. He deposited the requisite
amount in three instalments. Thus, the respondent failed
to comply with r. 19 of Bihar Excise (Settlement of
Licences for Retail Sale of Country/Spiced Country
Liquor) Rules, 2004. [Para 19] [926-D-F]
2. Rule 20 of 2004 Rules clearly lays the postulate
that if the advance security amount is not deposited in
accordance with the time limit prescribed u/r. 19, the
settlement and the licence, if issued, shall stand cancelled
and the deposited sum, if any, shall be forfeited to the
Government. Thus, there is a distinction between
settlement and issue of licence. [Para 14] [924-G]
3. The principle of condonation of default by way of
conduct cannot be attracted in the present case. On the
touchstone of the nature of the trade, the role of the State,
the economic concept of the policy, limited attractability
of Article 14 of the Constitution as regards the legislation
or policy, the restriction inherent in the policy and the
duty of the court, there could not have been condonation
of default. Such a concept is alien to the present nature
of trade and a licencee cannot claim any benefit under
the same, as the whole thing is governed by the
command of the Rules. [Paras 21 and 31] [927-G; 931-AB, D]
Har Shandar and Ors. etc. v. The Deputy Excise and
Taxation Commissioner and Ors. etc. AIR 1975 SC 1121:
1975 (3) SCR 254 ; M/s. Khoday Distilleries Ltd. v. State of
B
C
D
E
F
G
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A Karnataka (1995) 1 SCC 574: 1994 (4) Suppl. SCR 477 –
followed.
Amar Chandra Chakraborty v. The Collector of Excise,
Govt. of Tripura, Agartala and Ors. AIR 1972 SC 1863: 1973
(1) SCR 533 ; Nashirwar etc. v. State of Madhya Pradesh and
B
Ors. AIR 1975 SC 360: 1975 (2) SCR 861 ; State of M.P.
and Ors. etc. v. Nandlal Jaiswal and Ors. etc. AIR 1987 SC
251: 1987 (1) SCR 1; M/s. Ugar Sugar Works Ltd. v. Delhi
Administration and Ors. AIR 2001 SC 1447: 2001 (2) SCR
630 ; State of M.P. and Ors. etc. etc. v. Nandlal Jaiswal and
C Ors. etc. etc. AIR 1987 SC 251: 1987 (1) SCR 1; P.N. Krishna
Lal and Ors. v. Govt. of Kerala and Anr. 1995 Supp (2) SCC
187: 1994 (5) Suppl. SCR 526; Secretary to Govt., Tamil
Nadu and Anr. v. K. Vinayagamurthy AIR 2002 SC 2968:
2002 (1) Suppl. SCR 683 ; State of Punjab and Anr. v.
D Devans Modern Breweries Ltd. and Anr. (2004) 11 SCC
26: 2003 (5) Suppl. SCR 930 – relied on.
4. The interpretation placed by the High Court that
the auction-purchaser is liable to pay from the date of
E issuance of licence but not from the date of the settlement
cannot be accepted, as that runs counter to the plain
language of Rule 24. The respondent had availed the
benefit of the licence being fully aware of the Rules,
Notification and the terms incorporated in the licence.
F The Rules provide that he has to pay from the date of the
settlement and in the instant case, the settlement took
place on 5th June, 2006. In view of what has been
engrafted in the Rules, there cannot be any trace of doubt
that the respondent has to be made liable to pay the
licence fee from the date of the settlement. [Para 31] [931G
B-E]
Case Law Reference:
H
H
1973 (1) SCR 533
relied on
Para 21
1975 (2) SCR 861
relied on
Para 22
STATE OF BIHAR v. NIRMAL KUMAR GUPTA
919
920
A
A
B
B
C
C
From the Judgment & Order dated 18.11.2008 of the High D
Court of Judicature at Patna in C.W.J.C., No. 16577 of 2008.
D
1975 (3) SCR 254
followed
Para 23
1987 (1) SCR 1
relied on
Para 24
1994 (4) Suppl. SCR 477 followed
Para 25
2001 (2) SCR 630
relied on
Para 26
1987 (1) SCR 1
relied on
Para 27
1994 (5) Suppl. SCR 526 relied on
Para 28
2002 (1) Suppl. SCR 683 relied on
Para 29
2003 (5) Suppl. SCR 930 relied on
Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 128
of 2013.
Gopal Singh for the Appellants.
Shantanu Sagar, Priti Rashmi, Smarhar Singh, T. Mahipal
E
for the Respondent.
E
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. The pivotal issue that emerges for consideration in this F
appeal is whether the Division Bench of the High Court of
Judicature at Patna has correctly interpreted the effect and
impact of the Bihar Excise (Settlement of Licences for retail sale
of country/spiced country liquor) Rules, 2004 (for short “the
Rules”) and the sale notification published by the Collector of G
Kishanganj in Excise Form 127 for various excise shops in
groups in the said district for the year 2006-07 and the terms
of licence.
3. As the factual matrix would exposit, the Collector,
H
F
SUPREME COURT REPORTS
[2013] 1 S.C.R.
Kishanganj, got the sale notification in Excise Form 127 issued
for settlement of various excise shops in various groups in the
district of Kishanganj for the financial year 2006-07 which
stipulated that the settlement shall be made on 23rd March,
2006 on auction-cum-tender basis and, accordingly,
applications were invited from interested persons. As the
settlement could not be effected in respect of group ‘ka’ shops
in the said district, the Collector issued a second notification
on 17th May, 2006 for the said group ‘ka’ which consisted of
six country spirit shops and three spiced country spirit shops.
On 5th June, 2006, the group ‘ka’ excise shops were settled
in favour of the respondent at a monthly licence fee of
Rs.8,29,600/-. The respondent deposited the advance security
of Rs.8,29,594/- on 7th June, 2006 and further Rs.8,29,600/on 22nd June, 2006. The Collector, Kishanganj moved the
Commissioner for his approval and the same was granted on
1st July, 2006 in the office of the Collector on 5th July, 2006
and on that day itself, the licence was issued in favour of the
respondent-licencee. It is the case of the appellant that as the
respondent did not deposit the requisite 1/4th amount of the
annual licence fee as advance security as prescribed under the
Rules but did so in three instalments, there was delay in
obtaining the approval from the Excise Commissioner in terms
of Rule 17(kha) of the Rules. Despite the delay in the payment
of the advance deposit, the Collector had recommended his
case for approval and, eventually, the Commissioner approved
the grant of licence in respect of group ‘ka’ shops and,
ultimately, the licence was issued, as stated earlier, on 5th July,
2006.
4. As there was breach of the conditions of the licence, a
G demand was raised for the period commencing 5th June, 2006
to 5th July, 2006 by the Excise Superintendent, Araria-cumKishanganj on 27th March, 2007. On receipt of the demand
notice, the respondent moved the Excise Superintendent on
29th April, 2007 asking him to withdraw the demand on the
H ground that he had not utilized the privilege during that period.
STATE OF BIHAR v. NIRMAL KUMAR GUPTA
[DIPAK MISRA, J.]
921
Thereafter, he challenged the demand notice before the Excise
Commissioner, who rejected the application vide order dated
18th September, 2008. Being grieved by the said order he
moved the High Court invoking the writ jurisdiction in CWJC
No. 16577 of 2008.
5. The High Court referred to Rules 16, 17, 20, 22 and 24
and recorded its opinion in the following manner: “That group of shops have been settled in favour of the
petitioner in the midst of excise year, is not in dispute. It
is also a fact that on 5th June, 2006, the bid made by the
petitioner for group ‘ka’ excise shops of Kishanganj
District was highest and accepted by the auctioning
authority by such acceptance is subject to approval of the
Excise Commissioner. There also does not seem to be
any dispute that there was some default on the part of the
petitioner in payment of the advance security amount.
However, the default seems to have been condoned as
despite the said default, his bid dated 5th June, 2006 was
not cancelled and licence was issued in Form 26C of the
Rules on 5th July, 2006. Rules 16 and 17 of the Rules,
when read together, would show that the final acceptance
of the bid by the auctioning authority, by itself, does not
entitle the bidder to get the licence as the said bid has to
be accepted by the Commissioner of Excise and only after
it is accepted by the Commissioner, then the licence is
issued. In the backdrop of the aforesaid legal position,
when we turn to the facts of the present case, it would be
seen that although highest bid of the petitioner was
accepted on 5th June, 2006 but it was only on 30th June,
2006 that the Licensing Authority recommended to the
Commissioner of Excise for approval of settlement and it
was approved by the Excise Commissioner, Bihar on 1st
July, 2006 and after receipt of the approval from the Excise
Commissioner on 5th July, 2006, the licence was issued
by the Licensing Authority on that date. Surely, in the
922
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
backdrop of the facts that the licence was issued on 5th
July, 2006 the petitioner could not have been fastened with
the liability to pay licence fee from 5th June, 2006.”
[Underlining is ours]
B
B
C
C
D
D
E
E
F
F
G
G
H
H
6.Questioning the correctness of the aforesaid conclusion,
it is submitted by Mr. Gopal Singh, learned counsel for the State
of Bihar, that the High Court has fallen into error by construing
that the default has been condoned though there is no concept
of condonation in such a trade. It is urged by him that as the
requisite advance licence fee was not deposited as per the
Rules, the approval could not be obtained earlier and hence,
the Department, not being at fault, should not suffer the loss of
revenue more so when the licencee had accepted the
conditions enumerated in the licence. That apart, submits Mr.
Singh, as per the Rules, in such a situation, the respondent was
legally bound to pay the licence fee from the date of settlement.
7.Mr. Shantanu Sagar, learned counsel appearing for the
respondent, per contra, has submitted that the High Court has
correctly determined the controversy that the liability would be
from the date of issue of the licence and not earlier than that,
for unless the licence is issued, he cannot trade in liquor and
further it cannot be said that the State has parted with the
exclusive privilege.
8.To appreciate the controversy, it is necessary to refer to
certain Rules. Rule 16 of the Rules deals with the acceptance
of bid or tenders. It reads as follows: “16. Acceptance of bid or tenders.– (1) The Auctioning
Authority shall not be bound to accept the highest bid or
tender or any bid. If the highest bid or tender is not
accepted, the licensing officer shall instantaneously declare
the date of fresh auction, mentioning the reasons. In such
a circumstance, the entire deposited advance money will
be refunded to those applicants who do not want to
STATE OF BIHAR v. NIRMAL KUMAR GUPTA
[DIPAK MISRA, J.]
923
participate in subsequent auction.
924
A
(2) If the bid amount in any auction is finally accepted, any
subsequent offer with regard to that bid shall not be
considered. No further negotiation shall be entertained by
the Licensing Authority or the officer conducting the
B
auction.”
A
An amount equivalent to sixth portion of annual
licence fee shall be immediately deposited in cash
or in the form of Bank Draft. The amount of cash/
Bank Draft and that of advance money deposited
previously under Rule 11(a) and Rule 11(c)
respectively, shall be adjusted in part from security
amount.
(b)
C
The payable remaining amount on account of
advance security shall have to be deposited within
ten days of auction or before commencement of the
licence whichever is earlier.”
D
12. On a plain reading of the said Rule, it is manifest that
the highest bidder has to immediately deposit one fourth of the
annual licence fee as advance security money in the manner
provided in sub-clauses (a) and (b) of the Rule.
B
(b) The amount of highest bid, accepted will be the annual
amount of licence fee.”
10. On a perusal of the aforesaid two Rules, it is vivid that
the Licensing Officer conducting auction accepts the bid and,
thereafter, sends his recommendation for grant of exclusive
privilege of retail sale for the shops or group of shops to the
Commissioner and after his acceptance, the licence is issued.
The pertinent part of this Rule is that the amount of highest bid
accepted would be the annual amount of licence fee.
[2013] 1 S.C.R.
(a)
9.Rule 17 of the Rules which provides for final acceptance
of the bid is as follows: “17. Final acceptance of bid. – (a) The recommendation C
to grant exclusive privilege of retail sale for the shop or
group of shops to the person bidding highest, and
acceptance under Rule 16, shall be sent to the
Commissioner of Excise by the Licensing Officer, and
after his acceptance a licence will be issued.
D
SUPREME COURT REPORTS
13. Rule 20 deals with the consequences of default in
advance security. It reads as under: E
E
F
F
11. Rule 19 provides for payment of advance security in
the manner prescribed therein. The said Rule is reproduced
hereinbelow: “19. Payment of Advance Security. – After the G
declaration of acceptance of the highest bid the Licensing
Authority, one fourth, portion of the annual licence fee shall
be paid by the highest bidder as advance security in the
following manner for due execution of a contract: H
“20. Default in advance security. – In case of failure to
deposit the amount of advance security, as mentioned in
Rule 19, within the prescribed time, the settlement and the
licence, if issued, shall stand cancelled and the deposited
amount, if any, shall be forfeited to the Government. In such
a circumstance, a re-auction or alternative arrangement
shall be made by the Licensing Authority.”
14. The aforesaid Rule, when properly scrutinized, clearly
lays the postulate that if the advance security amount is not
deposited in accordance with the time limit prescribed under
G Rule 19, the settlement and the licence, if issued, shall stand
cancelled and the deposited sum, if any, shall be forfeited to
the Government. Thus, there is a distinction between settlement
and issue of licence.
H
15. Rule 23 deals with adjustment/refund of advance
STATE OF BIHAR v. NIRMAL KUMAR GUPTA
[DIPAK MISRA, J.]
925
926
security amount. It stipulates that the security amount referred A
to in Rule 19 shall be refunded at the end of the settlement
period if all the dues and claims of the State Government with
regard to the auctioned shop or group of shops have already
been paid by the licencee.
B
16. Rule 24 deals with the commencement of the period
of licence. It is as follows: “24. Commencement of the period of licence. – A
licence issued in favour of any auction-purchaser shall be
effective from 1st April of the excise year unless the C
Licensing Authority orders otherwise. The auctionpurchaser shall be liable to pay the bid money from the first
day of the licence period, even if the licence has been
issued thereafter.
D
Provided that if any shop or a group of shops is
settled in the midst of the excise year, the licence
shall commence from the date of settlement of the
shop or the group of shops.
A
B
C
D
E
E
17. The said Rule has to be carefully x-rayed and F
understood. It clearly lays down that the licence shall be
effective from 1st April of the excise year and the auctionpurchaser shall be liable to pay the bid money from the first day
of the licence period, even if the licence has been issued
thereafter. The proviso further stipulates that if any shop or a G
group of shops is settled in the midst of the excise year, the
licence shall commence from the date of settlement of the shop
or the group of shops.
F
The Licensing Authority shall mention details of the shops/
licences to be settled and annual minimum guaranteed
quantity to be lifted under those licences and the reserved
fee thereof, in the sale notification for every excise year.”
18. The High Court, interpreting the Rule position, has
opined that the shops were settled in favour of the respondent
H
G
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
in the midst of the year, i.e., on 5th June, 2006, and after
obtaining the approval on 1st July, 2006 from the Excise
Commissioner, the licence was issued by the Licensing
Authority on 5th July, 2006, and, therefore, the demand of
licence fee for the period from 5th June, 2006 to 5th July, 2006
is not sustainable.
19. As the factual matrix would reveal, the notification in
Form No. 127 was issued on 23rd March, 2006. The terms and
conditions of the settlement of excise shops were duly
incorporated in the sale notification and as per Rule 8, the terms
and conditions mentioned in the notification are deemed to be
included in the conditions of the licence. As per the first
notification, all the three country spirit shops could not be settled
and further steps were taken for settlement and, eventually, the
bid of the respondent was accepted on 5th June, 2006 with the
annual licence fee of Rs.99,55,200/- or at a monthly fee of
Rs.8,29,600/-. The respondent was required to pay 1/4th of the
annual licence fee as advance security money but he failed to
do so in time. He deposited the requisite amount in three
instalments, i.e., first on 7th June, 2006, second on 22nd June,
2006 and third on 17th July, 2006. As per Rule 19(a), he was
required to deposit 1/6th portion of the annual licence fee
immediately in cash or in the form of bank draft. The remaining
amount of advance security was to be deposited within ten days
of the auction or before the commencement of the licence.
Thus, the respondent failed to comply with the said Rule.
However, the Collector recommended his case on 30th June,
2006 which was accepted on 1st July, 2006 and the licence
was issued on 5th July, 2006. It is worthy to note that thereafter,
demand notice of Rs.16,03,893/- was issued by the Excise
Superintendent. The Commissioner took note of the fact that
out of Rs.74,36,071/-, the licencee had paid Rs.66,36,794/and, hence, a sum of Rs.7,99,277/- remained to be paid. Be it
noted, on 3rd March, 2007, the licence was cancelled for
breach of other conditions and in the present case, we are not
concerned with those conditions, for the controversy in
STATE OF BIHAR v. NIRMAL KUMAR GUPTA
[DIPAK MISRA, J.]
927
praesenti only relates to the demand commencing 5th June,
2006 to 5th July, 2006.
20. The High Court has opined that the State had not
parted with the exclusive privilege till the licence was issued.
Under Rule 24, a licence issued in favour of the auctionpurchaser is effective from 1st April of the excise year unless
the Licensing Authority orders otherwise and the auction
purchaser is liable to pay the bid money from the first day of
the licence period even if the licence has been issued
thereafter. That apart, he is supposed to pay the licence fee
from the commencement of the settlement period and the
licence commences from the date of the settlement. In the case
at hand, it was settled on 5th June, 2006. The licence was
issued on 5th July, 2006. The principle of condonation of default
has been taken recourse to by the High Court on the foundation
that despite default in making deposit of advance security, the
licensing officer recommended his case for approval to the
Commissioner of Excise. The default, as we perceive, comes
into play if there is violation of Rule 19 which stipulates for
advance security. There is no dispute over the fact that there
was delay. The respondent was clearly responsible for the
same. The licensing officer thought it appropriate to recommend
his case and the Excise Commissioner did approve it and on
receipt of the approval, the licence was issued on the same
day. The respondent accepted the licence knowing fully well the
terms and conditions of the licence and that he has to pay the
licence fee from the date of the settlement.
928
A
A
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C
C
D
D
E
E
F
F
21. At this juncture, we may usefully address to the issue
whether in a case of this nature, the principle of condonation
of default by way of conduct can be attracted. First of all, under
G
the Rules, the authorities are entitled to forfeit the amount
deposited when there is non-compliance of the Rules. It is to
be borne in mind that the nature of the trade has also its own
significance. In Amar Chandra Chakraborty v. The Collector
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
of Excise, Govt. of Tripura, Agartala and Others1, this Court
held thus: “Trade or business in country liquor has from its inherent
nature been treated by the State and the society as a
special category requiring legislative control which has
been in force in the whole of India since several decades.
In view of the injurious effect of excessive consumption of
liquor on health this trade or business must be treated as
a class by itself and it cannot be treated on the same basis
as other trades while considering Article 14.”
22. In the case of Nashirwar etc. v. State of Madhya
Pradesh and Others2, this Court opined that the State has the
exclusive right or privilege in manufacturing and selling of liquor
and a citizen has no fundamental right to do business in liquor.
It has been further ruled that it is within the police power of the
State to enforce public morality by prohibiting trade in noxious
or dangerous goods.
23. In Har Shandar and Others etc. v. The Deputy Excise
and Taxation Commissioner and Others etc.3, the Constitution
Bench reiterated the principles that there is no fundamental right
to do trade or business in intoxicant and the State has the
authority to prohibit every form of activity in relation to intoxicant
including manufacture, storage, export, import, sale and
possession. It has also been laid down that a wider right to
prohibit absolutely would include the narrower right to permit
dealings in intoxicants in such terms of general application as
the State deems expedient.
24. In State of M.P. and Others etc. v. Nandlal Jaiswal and
Others
etc.4, this Court held that trading in liquor is inherently
G
punitive in nature.
H
1.
AIR 1972 SC 1863.
2.
AIR 1975 SC 360.
3.
AIR 1975 SC 1121.
4.
AIR 1987 SC 251.
STATE OF BIHAR v. NIRMAL KUMAR GUPTA
[DIPAK MISRA, J.]
929
25. In M/s. Khoday Distilleries Ltd. v. State of Karnataka5,
the Constitution Bench has ruled that the right to carry on
occupation, trade or business does not extend to trade or
business or any activities which are injurious and against the
welfare of the general public. It is further held therein that a
citizen has no fundamental right to do business in intoxicant as
liquor.
26. In M/s. Ugar Sugar Works Ltd. v. Delhi Administration
and Others 6, this Court reiterated the said principle and
emphasized on the regulatory powers of the State.
27. In State of M.P. and Ors. etc. etc. v. Nandlal Jaiswal
and Ors. etc. etc.7, a two-Judge Bench, while expressing the
view that Article 14 of the Constitution is attracted to grant of
exclusive right or privilege for manufacture and sale of liquor
as it involves the State largesse, has stated thus:“33. But, while considering the applicability of Article 14
in such a case, we must bear in mind that, having regard
to the nature of the trade or business, the Court would be
slow to interfere with the policy laid down by the State
Government for grant of licences for manufacture and sale
of liquor. The Court would, in view of the inherently
pernicious nature of the commodity allow a large measure
of latitude to the State Government in determining its policy
of regulating, manufacture and trade in liquor. Moreover,
the grant of licences for manufacture and sale of liquor
would essentially be a matter of economic policy where the
Court would hesitate to intervene and strike down what the
State Government had done, unless it appears to be
plainly arbitrary, irrational or mala fide.”
SUPREME COURT REPORTS
930
A
A
[2013] 1 S.C.R.
28. In P.N. Krishna Lal and Ors. v. Govt. of Kerala and
Anr. , the Court expressed thus:8
B
B
C
C
“28....dealing in liquor inherently pernicious or dangerous
goods which endangers the community or subversive of
morale, is within the legislative competence under the Act.
The State has thereby the power to prohibit trade or
business which is injurious to the health and welfare of the
public and the elimination and exclusion from the business
is inherent in the nature of liquor business. The power of
the legislature to evolve the policy and its competence to
raise presumptive evidence should be considered from
this scenario.”
[emphasis supplied]
D
D
29. In Secretary to Govt., Tamil Nadu and Anr. v. K.
Vinayagamurthy9, it has been held as follows:
“7....So far as the trade in noxious or dangerous goods are
concerned, no citizen can claim to have trade in the same
and the intoxicating liquor being a noxious material, no
citizen can claim any inherent right to sell intoxicating liquor
by retail. It cannot be claimed as a privilege of a citizen of
a State. That being the position, any restriction which the
State brings forth, must be a reasonable restriction within
the meaning of Article 19(6) and reasonableness of the
restriction would differ from trade to trade and no hard and
fast rule concerning all trades can be laid down....”
E
E
F
F
G
30. In State of Punjab and Anr. v. Devans Modern
Breweries Ltd. and Anr.10, it has been reiterated that trade in
G liquor is considered inherently noxious and pernicious.
[emphasis supplied]
31. We have referred to the aforesaid decisions to
5.
(1995) 1 SCC 574.
8.
1995 Supp (2) SCC 187.
6.
AIR 2001 SC 1447.
9.
AIR 2002 SC 2968.
7.
AIR 1987 SC 251.
H
H
10. (2004) 11 SCC 26.
STATE OF BIHAR v. NIRMAL KUMAR GUPTA
[DIPAK MISRA, J.]
931
accentuate the nature of the trade, the role of the State, the
economic concept of the policy, limited attractability of Article
14 of the Constitution as regards the legislation or policy, the
restriction inherent in the policy and the duty of the court. On
the aforesaid touchstone, we are required to see whether the
doctrine of condonation by conduct, especially in the present
case, could have been taken recourse to by the High Court. The
respondent had availed the benefit of the licence being fully
aware of the Rules, notification and the terms incorporated in
the licence. The Rules provide that he has to pay from the date
of the settlement and in this case, the settlement took place on
5th June, 2006. In view of what has been engrafted in the Rules,
there cannot be any trace of doubt that the respondent has to
be made liable to pay the licence fee from the date of the
settlement. There could not have been condonation of default.
Such a concept is alien to the present nature of trade and a
licencee cannot claim any benefit under the same as the whole
thing is governed by the command of the Rules. That apart, we
are unable to subscribe to the interpretation placed by the High
Court that the auction-purchaser is liable to pay from the date
of issuance of licence but not from the date of the settlement
as that runs counter to the plain language of Rule 24. Reading
the Rules in a comprehensive manner in juxtaposition with the
notification which forms the terms and conditions of the licence
and the nature of the trade, the irresistible conclusion is that
the liability accrued from the date of the settlement and,
therefore, we find that the order passed by the Excise
Commissioner was just and proper and there was no warrant
on the part of the High Court to interfere with the same.
32. Consequently, the appeal is allowed, the order passed
by the High Court is set aside and that of the Excise
Commissioner is restored. The parties shall bear their
respective costs.
K.K.T.
[2013] 1 S.C.R. 932
A
A
COMMISSIONER OF CENTRAL EXCISE, CHENNAI-II
COMMISSIONERATE, CHENNAI
v.
M/S. AUSTRALIAN FOODS INDIA (P) LTD., CHENNAI
(Civil Appeal No. 2826 of 2006)
B
B
JANUARY 14, 2013
[D.K. JAIN AND JAGDISH SINGH KHEHAR, JJ.]
C
C
D
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E
E
F
F
G
G
H
H
Excise – Cookies sold by assessee at its outlet – Use of
brand name “cookie man” on sale of cookies in plastic
pouches/containers – Entitlement of assessee-respondent to
benefit of small scale exemption in respect of cookies sold
loosely from the counter of the retail outlet – Held: Not entitled
– It is not necessary for goods to be stamped with a trade or
brand name to be considered as branded goods under the
SSI notification – A scrutiny of the surrounding circumstances
is not only permissible, but necessary to decipher the same
– One fails to see how the same branded cookies, sold in
containers, could transform to become unbranded ones, when
sold from the same counter, or even from an adjoining
counter, without packaging carrying the brand name – The
cookies were sold from a dedicated outlet of “Cookie Man”
where no other products but those of the assessee were sold
– The invoices carried the name of the company and the
cookies were sold from a counter of the store – The store’s
decision to sell some cookies without containers that were
stamped with its brand or trade name did not change the
brand of the cookies – The cookies sold even without
inscription of the brand name, indicated a clear connection
with the brand name, in the course of assessee’s business of
manufacture and sale of cookies under the brand name
“Cookie Man” – They continued to be branded cookies of
“Cookie Man” and hence could not claim exemption under
Appeal allowed.
932
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 933
AUSTRALIAN FOODS INDIA (P) LTD.
the SSI Notification – S.S.I. Notification No. 1/93-C.E., dated
28th February, 1993, as amended.
Respondent-assessee was engaged in the
manufacture and sale of cookies from branded retail
outlets of “Cookie Man”. The brand name used the words
“Cookie Man” accompanied with a logo. The assessee
was selling some of these cookies in plastic pouches/
containers on which the brand name described above
was printed. No brand name was affixed or inscribed on
the cookies. Excise duty was duly paid, on the cookies
sold in the said pouches/containers. However, on the
cookies sold loosely from the counter of the same retail
outlet, with plain plates and tissue paper, duty was not
paid. The retail outlets did not receive any loose cookies
nor did they manufacture them. They received all cookies
in sealed pouches/containers. Those sold loosely were
taken out of the containers and displayed for sale
separately.
Notice was issued to the assessee by the
Commissioner to show cause as to why (i) the cookies
sold by the assessee at its outlets be not classified under
Chapter sub-heading 1905.11 as biscuits and (ii) in view
of their use of brand name “Cookie Man” on sale of
cookies in plastic pouches/containers, S.S.I. exemption
should not be disallowed. Upon consideration of the
explanation furnished by the assessee, the
Commissioner inter-alia came to the conclusion that
unless the specified goods or the packaging in which
these are sold, bear the brand name or the logo,
prescribed S.S.I. exemption cannot be denied. Thus, the
Commissioner held that since there was neither any
material evidence nor averment to prove that the brand
name was embossed on the cookies, the assessee was
eligible to avail of the benefit of small scale exemption in
respect of cookies sold loosely from the counter of the
934
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C
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A retail outlet. Aggrieved, both the Department and the
assessee filed cross appeals before the Customs, Excise
and Service Tax Appellate Tribunal which affirmed the
decision of the Commissioner, and therefore the present
appeal by the revenue under Section 35L(b) of the
B Central Excise Act, 1944.
The question which arose for consideration was,
whether the manufacture and sale of specified goods
that did not physically bear a brand name, from branded
sale outlets, disentitled the assessee from the benefit of
C S.S.I. Notification No. 1/93-C.E., dated 28th February, 1993,
as amended from time to time.
Allowing the appeal, the Court
D
E
F
G
H
HELD: 1.1. If a final product is marked or stamped
with a brand name, it is clearly a branded good; to stretch
this principle to imply that one not marked by any brand
is an unbranded good, is untenable. In case a scrutiny
of the good itself fails to reveal a brand name then the
search must not end there; one ought to look into the
E
surrounding circumstances of the good to decipher, if it
is in fact branded or not. Such an approach is necessary
to maintain the essence of the concept of a brand name.
A brand/ trade name must not be reduced to a label or
sticker that is affixed on a good. The test of whether the
F good is branded or unbranded, must not be the physical
presence of the brand name on the good, but whether it,
as Explanation IX of the S.S.I. Notification No. 1/93-C.E.,
dated 28th February, 1993, reads, “is used in relation to
such specified goods for the purpose of indicating, or so
G as to indicate a connection in the course of trade
between such specified goods and some person using
such name or mark with or without any indication of the
identity of the person.” Therefore, whether the brand
name appears in entirety or in parts or does not appear
H
D
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 935
AUSTRALIAN FOODS INDIA (P) LTD.
at all cannot be the chief criterion; primary focus has to
be on whether an indication of a connection is conveyed
in the course of trade between such specified goods and
some person using the mark. [Paras 14, 15] [946-E-H;
947-A-B]
1.2. Once it is established that a specified good is a
branded good, whether it is sold without any trade name
on it, or by another manufacturer, it does not cease to be
a branded good of the first manufacturer. Therefore, soft
drinks of a certain company do not cease to be
manufactured branded goods of that company simply
because they are served in plain glasses, without any
indication of the company, in a private restaurant. The
good will continue to be a branded good of the company
that manufactured it. The same principle would apply in
the case of potato chips, chocolates, biscuits, wafers,
powders and other such goods often sold from various
locations. [Para 17] [948-F-H]
1.3. In case of goods sold from exclusive single
brand retail outlets or restaurants or stores, the fact that
a good is sold from such a store ought to be a relevant
fact in construing if the good is its branded good or not.
In the case of such goods, perhaps a rebuttable
presumption arises in favour of such goods being
branded goods of the specified store. Such a
presumption can be rebutted if it is shown that the
specified good being sold is in fact a branded good of
another manufacturer. Thus, branded potato chips, soft
drinks, chocolates etc. though sold from such outlets, will
not be considered to be goods of such outlets. However,
all other goods, sold without any appearance of a brand
or trade name on them, would not be deemed unbranded
goods; to the contrary, they may be deemed to be
branded goods of that outlet unless a different brand or
trade name appears. [Para 18] [949-A-C]
936
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
1.4 Hence, it is not necessary for goods to be
stamped with a trade or brand name to be considered as
branded goods under the SSI notification, discussed
above. A scrutiny of the surrounding circumstances is
not only permissible, but necessary to decipher the same;
B the most important of these factors being the specific
outlet from which the good is sold. However, such
factors would carry different hues in different scenarios.
There can be no single formula to determine if a good is
branded or not; such determination would vary from
C case to case. [Para 19] [949-D-F]
A
D
D
E
E
F
F
G
G
H
H
1.5 In the instant case, one fails to see how the same
branded cookies, sold in containers, can transform to
become unbranded ones, when sold from the same
counter, or even from an adjoining counter, without
packaging carrying the brand name. Admittedly, on the
same cookies, physically bearing brand “Cookie Man”
sold in containers carrying brand name duty is paid. It is
interesting to note that counsel appearing on behalf of
the assessee first argued that to determine if the cookies
sold from the counter are branded or not, scrutiny must
be limited to the case of the cookies themselves without
looking at the surrounding circumstances; yet went on
to argue that the tissues and plates they were served on
did not bear the brand of the specified good. Either the
environment of the goods can be looked into, or cannot
be taken into consideration at all. Once it is established,
as in the instant case, that the environment of the goods
can be gone into to construe if it is branded or not, one
fails to see why the environment of the goods should be
limited to the plates and tissues, on which they are
served. As aforesaid, in the instant case, the cookies
were sold from a dedicated outlet of “Cookie Man” where
no other products but those of the assessee were sold.
The invoices carry the name of the company and the
cookies were sold from a counter of the store. The
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 937
AUSTRALIAN FOODS INDIA (P) LTD.
store’s decision to sell some cookies without containers
that are stamped with its brand or trade name does not
change the brand of the cookies. The cookies sold even
without inscription of the brand name, indicate a clear
connection with the brand name, in the course of
assessee’s business of manufacture and sale of cookies
under the brand name “Cookie Man”. They continue to
be branded cookies of “Cookie Man” and hence cannot
claim exemption under the SSI Notification. [Para 20] [949G-H; 950-A-E]
Commissioner of Central Excise, Trichy v. Rukmani
Pakkwell Traders (2004) 11 SCC 801 and Commissioner of
Central Excise, Chandigarh-I, Vs. Mahaan Dairies (2004) 11
SCC 798 – relied on.
Commissioner of Central Excise, Jamshedpur v.
Superex Industries, Bihar (2005) 4 SCC 207: Kohinoor
Elastics (P) Ltd. v. Commissioner of Central Excise, Indore
(2005) 7 SCC 528 –referred to.
Case Law Reference:
938
A
referred to
Para 11, 12
(2005) 7 SCC 528
referred to
Para 13
(2004) 11 SCC 801
relied on
Para 15
(2004) 11 SCC 798
relied on
Para 16
B
C
R.P. Bhatt, Arijit Prasad, Shalini Kumar, Yatinder
Chaudhary, A.K. Sharma for the Appellant.
N. Venkataraman, V. Lakshmi Kumaran, Alok Yadav,
Rajesh Kumar, R. Satish Kumar, Parivesh Singh, Anjali
Chauhan, V.N. Raghupathy for the Respondent.
B
D.K. JAIN, J. 1. The short question of law which arises
for consideration in this appeal is, whether the manufacture and
sale of specified goods that do not physically bear a brand
name, from branded sale outlets, would disentitle an assessee
from the benefit of S.S.I. Notification No. 1/93-C.E., dated 28th
C February, 1993, as amended from time to time.
2. Briefly stated, the material facts giving rise to the appeal,
are as follows:
D
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2826 of 2006.
From the Judgment & Order dated 27.09.2005 of the
Customs, Excise and Service Tax Appellate Tribunal, South
Zonal Bench at Chennai, in Appeal Nos. E/916/2013 and E/
1372/04.
[2013] 1 S.C.R.
The Judgment of the Court was delivered by
E
(2005) 4 SCC 207
A
SUPREME COURT REPORTS
G
H
Pursuant to an inspection by the officials of the
D enforcement Commissionerate, Chennai-II at the sales outlet
of the respondent (hereinafter referred as “the assessee”),
revealed that the assessee was engaged in the manufacture
and sale of cookies from branded retail outlets of “Cookie Man”.
The assessee had acquired this brand name from M/s Cookie
E Man Pvt. Ltd, Australia (which in turn acquired it from M/s Autobake Pvt. Ltd., Australia). The brand name used the words
“Cookie Man” accompanied with a logo depicting the smiling
face of a mustachioed chef. The assessee was selling some
of these cookies in plastic pouches/containers on which the
F brand name described above was printed. No brand name was
affixed or inscribed on the cookies. Excise duty was duly paid,
on the cookies sold in the said pouches/containers. However,
on the cookies sold loosely from the counter of the same retail
outlet, with plain plates and tissue paper, duty was not paid.
G
3. The retail outlets did not receive any loose cookies nor
did they manufacture them. They received all cookies in sealed
pouches/containers. Those sold loosely were taken out of the
containers and displayed for sale separately. Even though no
separate register was maintained to account for the sale of the
H
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 939
AUSTRALIAN FOODS INDIA (P) LTD. [D.K. JAIN, J.]
cookies sold loosely, their numbers were calculated from the
number of empty pouches/containers left behind at the end of
day.
4. On scrutiny of the documents recovered from the said
outlet and on the basis of the statement of the Executive
Director, a notice dated 20th December, 2012 was issued to
the assessee by the Commissioner to show cause as to why
(i) the cookies sold by the assessee at its outlets be not
classified under Chapter sub-heading 1905.11 as biscuits and
(ii) in view of their use of brand name “Cookie Man” on sale of
cookies in plastic pouches/containers, S.S.I. exemption should
not be disallowed.
5. Upon consideration of the explanation furnished by the
assessee, the Commissioner inter-alia came to the conclusion
(relevant for the controversy at hand) that unless the specified
goods or the packaging in which these are sold, bear the brand
name or the logo, prescribed S.S.I. exemption cannot be
denied. Thus, the Commissioner held that since there was
neither any material evidence nor averment to prove that the
brand name was embossed on the cookies, the assessee was
eligible to avail of the benefit of small scale exemption in
respect of cookies sold loosely from the counter of the retail
outlet. Being aggrieved by the order, both the Department and
the assessee filed cross appeals before the Customs, Excise
and Service Tax Appellate Tribunal, South Zonal Bench at
Chennai (hereinafter referred to as “the Tribunal).
6. The decision of the Commissioner having been affirmed
by the Tribunal, the revenue is before us in this appeal under
Section 35L(b) of the Central Excise Act, 1944 (for short “the
Act”).
7. There is no dispute that the specified good is to be
classified under sub-heading 1905.11 as Biscuits,
manufactured with the aid of power. The controversy revolves
around para 4 of S.S.I. notification No. 1/93-C.E. dated 28th
940
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B
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A February, 1993, which, in its erstwhile form, read as follows: -
B
“4. The exemption contained in this notification shall not
apply to the specified goods where a manufacturer affixes
the specified goods with a brand name or trade name
(registered or not) of another person who is not eligible for
the grant of exemption under this notification…”
8. The meaning of a “brand name” or “trade name” is
enunciated in Explanation IX of the said notification which says:-
C
C
D
D
E
E
F
F
G
10. Part (iii) of para J of the Budget Changes-1994-95
dealt with “Changes in the SSI schemes” explains the purpose
G of the amendment in the following words:
H
H
“Explanation IX- ‘Brand name’ or ‘trade name’ shall mean
a brand name or trade name, whether registered or not,
that is to say a name or a mark, such as symbol,
monogram, label, signature or invented word or writing
which is used in relation to such specified goods for the
purpose of indicating, or so as to indicate a connection in
the course of trade between such specified goods and
some person using such name or mark with or without any
indication of the identity of that person.”
9. Para 4 of the said notification that deals with exemption
for certain goods “affixed” with a brand name was amended
vide notification No. 59/94-C.E. dated 1st March, 1994, to
read:“4. The exemption contained in this notification shall not
apply to the specified goods, bearing a brand name or
trade name (registered or not) of another person…”
“(iii) Brand name provision has been amended so as to
provide that SSI concession shall not apply to the goods
bearing the brand name or trade name of another person.
The effect of this amendment is that if an SSI unit
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 941
AUSTRALIAN FOODS INDIA (P) LTD. [D.K. JAIN, J.]
942
manufactures the branded goods for another person A
irrespective of whether the brand name owner himself is
SSI unit or not, such goods shall not be eligible for the
concession. Another implication of this amendment is that
the requirement of affixation or brand name by the SSI unit
has been changed and now the only condition is that the B
goods cleared by SSI unit bearing a brand name of another
person shall not be eligible for the concession irrespective
of the fact whether the brand name was affixed by the SSI
unit or that, the input material used by the SSI unit was
already affixed with brand name.”
C
11. Mr. N.Venkataraman, learned senior counsel
appearing on behalf of the assessee argued that a combined
reading of Para 4 and Explanation IX of the notification, along
with Para J of the Budget Changes, would lead to the
conclusion that only specified goods bearing an affixed brand D
name, or in other words, those goods that physically display the
brand name, are not covered by the exemption. Learned
counsel relied on the decision of this Court in the case of
Commissioner of Central Excise, Jamshedpur Vs. Superex
Industries, Bihar 1 for the proposition that a physical E
manifestation of a brand name on a good is a necessary
requirement for disqualification from the exemption granted by
the concerned notification. Learned counsel also relied on the
same decision to urge that this Court cannot look into the
surrounding circumstances of a good, especially the specific F
outlet from which it is sold, to construe if it is branded or not;
scrutiny, in his opinion, must be limited to the specified good
itself. The relevant paragraph of the order on which emphasis
was laid, reads as follows:
G
“3. CEGAT has held that the benefit of the notification
would be lost only if the manufacturer affixes the specified
goods with a brand name or trade name of the another
who is not eligible to the exemption under the notification.
1.
(2005) 4 SCC 207.
H
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
It could not be denied that the name Kirloskar is not affixed
to the generating sets. CEGAT has held that merely
because, in the invoices, the set is passed off as a
Kirloskar generating set, the benefit of the notification
would not be lost. We see no infirmity in this reasoning.
We, therefore, see no reason to interfere.”
12. We are unable to appreciate as to how a compulsory
requirement of physical manifestation of a brand name on the
specified good, for it to be construed as a branded good, can
be derived from the above passage. The decision in the above
C case simply recognizes that the benefit would be lost only if a
manufacturer affixes the specified goods with a brand or trade
name of another who is not eligible for the exemption under the
notification. It does not state that the specified good must itself
bear or be physically affixed with the brand or trade name. Such
D an interpretation would lead to absurd results in case of goods,
which are incapable of physically bearing brand names. For
instance, the goods, which, due to their very nature and
structure, are incapable of bearing brand names, would always
be deemed unbranded. Liquids, soft drinks, milk, dairy
E products, powders, edible products, salt, pepper, sweets,
gaseous products, perfumes, deodorants etc., to name a few,
are either liquids, gases or amorphous/brittle solids, making it
impossible for the good to be affixed with a brand name. In
some situations, such an affixation may be impossible, in which
F case, it would be permissible for the specified good to continue
being a branded good, as long as its environment conveys that
it is branded. By environment we mean packaging and
wrapping of the good, accessories it is served with, uniform of
vendors, invoices, menu cards, hoardings and display boards
G of outlet, furniture and props used, the specific outlet itself in
its entirety and other such factors, all of which together or
individually or in parts, may convey that a good is a branded
one, notwithstanding that there is no physical inscription of the
brand or trade name on the good itself. Further, a specific,
H dedicated and exclusive outlet from which a good is sold is often
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 943
AUSTRALIAN FOODS INDIA (P) LTD. [D.K. JAIN, J.]
A
A
B
B
C
C
D
D
E
E
“5. Clause 4 of the notification is unambiguous and clear. F
It specifically states that the exemption contained in the
notification shall not apply to specific goods which bear a
brand name or trade name (registered or not) of another
person. It is settled law that to claim exemption under a
notification one must strictly comply with the terms of the G
notification. It is not permissible to imply words into the
notification which the legislature has purposely not used.
The framers were aware that use of a brand/trade name
is generally to show to a consumer a connection between
F
the most crucial and conclusive factor to hold a good as
branded. The decision referred to above only made a limited
point that invoices alone cannot be the sole basis of construing
whether a good is a branded good or not; it does not hold that
a specified good itself must be stamped with a brand name. It
is therefore, permissible to look into the environment of the
good. However, like in the case of Kirloskar generators
[Superex Industries (supra)], invoices bearing brand name
could not be the sole basis of construing whether goods are
branded or not. That decision would depend on the facts and
circumstances of the case. There can be no precise formula
for such a determination; in some cases certain factors may
carry more weight than in other situations. However, in most
circumstances, an exclusive branded outlet from which the
good is sold, would be a crucial factor in determining the
question.
13. Learned counsel strongly relied on another decision
of this Court in Kohinoor Elastics (P) Ltd. Vs. Commissioner
of Central Excise, Indore,2 for the proposition that only the
“specified good” in question must be scrutinized and the
expression cannot be expanded to mean “specified outlets” or
other surrounding circumstances. To bring home his point,
reliance was placed on the following paragraphs from the said
decision:
2.
944
(2005) 7 SCC 528.
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SUPREME COURT REPORTS
the goods and a person. The framers were aware that
goods may be manufactured on order for captive
consumption by that customer and bear the brand/trade
name of that customer. The framers were aware that such
goods may not reach the market in the form in which they
were supplied to the customer. The framers were aware
that the customer may merely use such goods as an input
for the goods manufactured by him. Yet clause 4 provides
in categoric terms that the exemption is lost if the goods
bear the brand/trade name of another. Clause 4 does not
state that the exemption is lost only in respect of such
goods as reach the market. It does not carve out an
exception for goods manufactured for captive
consumption. The framers meant what they provided. The
exemption was to be available only to goods which did not
bear a brand/trade name of another. The reason for this
is obvious. If use of brand/trade names were to be
permitted on goods manufactured as per the orders of
customers or which are to be captively consumed then
manufacturers, who are otherwise not entitled to
exemption, would get their goods or some inputs
manufactured on job-work basis or through some small
party, freely use their brand/trade name on the goods and
avail of the exemption. It is to foreclose such a thing that
clause 4 provides, in unambiguous terms, that the
exemption is lost if the “goods” bear a brand/trade name
of another.”
xxxxx
G
H
[2013] 1 S.C.R.
xxxxx
xxxxx
“7. ….Now in this case there is no dispute on facts. The
“course of trade” of the appellants is making elastics for
specified customers. It is an admitted position that the
appellants are affixing the brand/trade name of their
customers on the elastics. They are being so affixed
because the appellants and/or the customer wants to
indicate that the “goods (elastic)” have a connection with
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 945
AUSTRALIAN FOODS INDIA (P) LTD. [D.K. JAIN, J.]
that customer. This is clear from the fact that the elastics
on which brand/trade name of ‘A’ is affixed will not and
cannot be used by any person other than the person using
that brand/trade name. As set out hereinabove once a
brand/trade name is used in the course of trade of the
manufacturer, who is indicating a connection between the
“goods” manufactured by him and the person using the
brand/trade name, the exemption is lost. In any case it
cannot be forgotten that the customer wants his brand/
trade name affixed on the product not for his own
knowledge or interest. The elastic supplied by the
appellants is becoming part and parcel of the
undergarment. The customer is getting the brand/trade
name affixed because he wants the ultimate customer to
know that there is a connection between the product and
him…”
14. We feel that to hold from the above passages that
every good must be physically stamped with a brand or trade
name to be considered a branded good in terms of the
notification, and that, one is forbidden to look beyond the
specified good into the surrounding environment of the good
in construing if it is a branded good or not, would be a complete
misunderstanding of the above judgment and a distortion of the
concept of a brand or trade name. The above judgment makes
no such observation and was delivered on a completely
different set of facts and circumstances. It involved a case of
undergarments manufactured by a producer P2, which used
branded elastics produced by P1, and retained the brand name
of P1 in the final product. P2 was denied exemption under the
same notification involved in the present case because of the
appearance of brand name of another i.e. P1, not covered by
the same notice. P2 argued that the presence of P1’s brand
name should not be taken as a basis for disqualification from
the benefits of the exemption since the customer buying the
good would continue to associate the good with P2 and not P1,
thus making it a branded good of only P2. This Court rejected
946
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A the contention and held that P1 is providing a stamped input
for captive consumption to P2 “because he wants the ultimate
customer to know that there is a connection between the
product and him”. The Court further observed that the term
“specified goods” is used without any caveats and hence
B rejected the contention that some consideration should be given
to the fact that P1 was used only as an input in the making of
the final product of P2. It is in this background that this Court
observed that the requirement of the notifications must be
adhered to strictly and cannot be diluted by substituting the term
C “specified goods” with the nature of goods or the manner of
disposal. In case the specified good clearly exhibits a brand
name of another not covered by the notification, it would
squarely fall within the confines of Para 4 of the notification;
looking beyond the specified good to consider whether it is an
input or not is not necessary in case of a conspicuous brand
D
name. However, to apply this principle to the scenario of a
specified good that does not contain a brand name at all would
be equivalent to fitting a square peg in a round hole. If a final
product is marked or stamped with a brand name, it is clearly
a branded good; to stretch this principle to imply that one not
E marked by any brand is an unbranded good, is untenable. In
case a scrutiny of the good itself fails to reveal a brand name
then the search must not end there; one ought to look into the
surrounding circumstances of the good to decipher, if it is in
fact branded or not.
F
15. We are of the opinion that such an approach is
necessary to maintain the essence of the concept of a brand
name. A brand/ trade name must not be reduced to a label or
sticker that is affixed on a good. The test of whether the good
G is branded or unbranded, must not be the physical presence
of the brand name on the good, but whether it, as Explanation
IX reads, “is used in relation to such specified goods for the
purpose of indicating, or so as to indicate a connection in the
course of trade between such specified goods and some
H person using such name or mark with or without any indication
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 947
AUSTRALIAN FOODS INDIA (P) LTD. [D.K. JAIN, J.]
of the identity of the person.” Therefore, whether the brand
name appears in entirety or in parts or does not appear at all
cannot be the chief criterion; primary focus has to be on whether
an indication of a connection is conveyed in the course of trade
between such specified goods and some person using the
mark. Highlighting this principle, this Court in Commissioner
of Central Excise, Trichy Vs. Rukmani Pakkwell Traders 3
observed thus: “6. The Tribunal had also held that under the notification
the use must be of “such brand name”. The Tribunal has
held that the words “such brand name” show that the very
same brand name or trade name must be used. The
Tribunal has held that if there are any differences then the
exemption would not be lost. We are afraid that in coming
to this conclusion the Tribunal has ignored Explanation IX.
Explanation IX makes it clear that the brand name or trade
name shall mean a brand name or trade name (whether
registered or not), that is to say, a name or a mark, code
number, design number, drawing number, symbol,
monogram, label, signature or invented word or writing.
This makes it very clear that even a use of part of a brand
name or trade name, so long as it indicates a connection
in the course of trade would be sufficient to disentitle the
person from getting exemption under the notification. In this
case, admittedly, the brand name or trade name is the
word “ARR” with the photograph of the founder of the
group. Merely because the registered trade mark is not
entirely reproduced does not take the respondents out of
clause 4 and make them eligible to the benefit of the
notification.”
16. Similarly, in Commissioner of Central Excise,
Chandigarh-I, Vs. Mahaan Dairies,4 it was noted as follows:
3.
(2004) 11 SCC 801.
4.
(2004) 11 SCC 798.
948
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[2013] 1 S.C.R.
“6. We have today delivered a judgment in CCE v. Rukmani Pakkwell Traders, (2004) 11 SCC 801 wherein
we have held in respect of another notification containing
identical words that it makes no difference whether the
goods on which the trade name or mark is used are the
same in respect of which the trade mark is registered.
Even if the goods are different, so long as the trade name
or brand name of some other company is used the benefit
of the notification would not be available. Further, in our
view, once a trade name or brand name is used then mere
use of additional words would not enable the party to claim
the benefit of the notification.”
“8. It is settled law that in order to claim benefit of a
notification, a party must strictly comply with the terms of
the notification. If on wording of the notification the benefit
is not available then by stretching the words of the
notification or by adding words to the notification benefit
cannot be conferred. The Tribunal has based its decision
on a decision delivered by it in Rukmani Pakkwell
Traders v. CCE (1999) 109 ELT 204 (CEGAT). We have
already overruled the decision in that case. In this case
also we hold that the decision of the Tribunal is
unsustainable. It is accordingly set aside.”
17. As aforesaid, once it is established that a specified
good
is a branded good, whether it is sold without any trade
F
name on it, or by another manufacturer, it does not cease to
be a branded good of the first manufacturer. Therefore, soft
drinks of a certain company do not cease to be manufactured
branded goods of that company simply because they are
served in plain glasses, without any indication of the company,
G
in a private restaurant. The good will continue to be a branded
good of the company that manufactured it. The same principle
would apply in the case of potato chips, chocolates, biscuits,
wafers, powders and other such goods often sold from various
locations.
H
COMMISSIONER OF CENTRAL EXCISE, CHENNAI v. 949
AUSTRALIAN FOODS INDIA (P) LTD. [D.K. JAIN, J.]
18. In case of goods sold from exclusive single brand retail
outlets or restaurants or stores, the fact that a good is sold from
such a store ought to be a relevant fact in construing if the good
is its branded good or not. In the case of such goods, perhaps
a rebuttable presumption arises in favour of such goods being
branded goods of the specified store. Such a presumption can
be rebutted if it is shown that the specified good being sold is
in fact a branded good of another manufacturer. Thus, branded
potato chips, soft drinks, chocolates etc. though sold from such
outlets, will not be considered to be goods of such outlets.
However, all other goods, sold without any appearance of a
brand or trade name on them, would not be deemed unbranded
goods; to the contrary, they may be deemed to be branded
goods of that outlet unless a different brand or trade name
appears.
19. Hence, we hold that it is not necessary for goods to
be stamped with a trade or brand name to be considered as
branded goods under the SSI notification, discussed above. A
scrutiny of the surrounding circumstances is not only
permissible, but necessary to decipher the same; the most
important of these factors being the specific outlet from which
the good is sold. However, such factors would carry different
hues in different scenarios. There can be no single formula to
determine if a good is branded or not; such determination would
vary from case to case. Also, our observations must be limited
to this notification and not supplanted to other laws with similar
subject matter pertaining to trade names and brand names.
20. Applying the said principles on the facts at hand, we
fail to see how the same branded cookies, sold in containers,
can transform to become unbranded ones, when sold from the
same counter, or even from an adjoining counter, without
packaging carrying the brand name. Admittedly, on the same
cookies, physically bearing brand “Cookie Man” sold in
containers carrying brand name duty is paid. It is interesting to
note that learned counsel appearing on behalf of the assessee
950
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A first argued that to determine if the cookies sold from the
counter are branded or not, scrutiny must be limited to the case
of the cookies themselves without looking at the surrounding
circumstances; yet went on to argue that the tissues and plates
they were served on did not bear the brand of the specified
B good. Either the environment of the goods can be looked into,
or cannot be taken into consideration at all. Once it is
established, as in the instant case, that the environment of the
goods can be gone into to construe if it is branded or not, we
do not see why the environment of the goods should be limited
to the plates and tissues, on which they are served. As
C
aforesaid, in the instant case, the cookies were sold from a
dedicated outlet of “Cookie Man” where no other products but
those of the assessee were sold. The invoices carry the name
of the company and the cookies were sold from a counter of
the store. In our opinion, the store’s decision to sell some
D cookies without containers that are stamped with its brand or
trade name does not change the brand of the cookies. We are
convinced that the cookies sold even without inscription of the
brand name, indicate a clear connection with the brand name,
in the course of assessee’s business of manufacture and sale
E of cookies under the brand name “Cookie Man”. They continue
to be branded cookies of “Cookie Man” and hence cannot
claim exemption under the SSI Notification.
F
21. In view of the aforegoing discussion, we are of the
opinion that the impugned decision of the Tribunal is erroneous
and unsustainable. Consequently, the appeal is allowed and the
impugned order is set aside, leaving the parties to bear their
own costs.
B.B.B.
Appeal allowed.
[2013] 1 S.C.R. 951
STEPHANIE JOAN BECKER
v.
STATE AND ORS.
(Civil Appeal No. 1053 of 2013)
FEBRUARY 08, 2013
952
A
A
B
B
[P. SATHASIVAM, RANJAN GOGOI AND
V. GOPALA GOWDA, JJ.]
[2013] 1 S.C.R.
of the Act, she sought permission of the court to take the
child out of the country for the purpose of adoption. Both
the applications were rejected on the sole ground that the
appellant being a single prospective adoptive parent was
aged about 53 years whereas for such a person the
maximum permissible age as prescribed by the
Government of India Guidelines in force was 45. The High
Court upheld the orders.
Allowing the appeal, the Court
GUARDIANS AND WARDS ACT, 1890:
C
ss.. 7 and 26 – Applications by appellant, a female
American citizen, for an order appointing her as guardian of
a minor female orphan and for permission to take the child
out of country for purpose of adoption – Held: Claim of
appellant will have to be necessarily considered on the basis D
of the law as in force on date, namely, the provisions of the
JJ Act and the Rules framed thereunder and Guidelines of
2011 which have been conferred a statutory sanction – Having
regard to totality of facts of the case, proposed adoption would
be beneficial to child apart from being consistent with legal
E
entitlement of appellant – Appellant is appointed as legal
guardian of the child and is granted permission to take the
child to USA – CARA will issue the necessary conformity
certificate as contemplated under clause 34(4) of the
Guidelines of 2011 – Juvenile Justice (Care and Protection
of Children) Act, 2000 – s. 41 – Juvenile Justice (Care and F
Protection of Children) Rules, 2007, r. 33 – Guidelines for
Adoption from India, 2006 – Guidelines Governing the
Adoption of Children, 2011 – Adoption – Inter country
adoption.
G
The appellant, an American citizen, by an application
u/s 7 of the Guardians and Wards Act, 1890 (the Act),
sought for an order appointing her as guardian of a 10
years old female orphan. By another application u/s 26
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SUPREME COURT REPORTS
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D
E
F
G
HELD: 1.1. Under sub-s. (3) of s. 41 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (JJ
Act) as amended by Act 33 of 2006 and made effective
from 22.8.2006, power has been conferred in the court to
give a child in adoption upon satisfaction that the various
guidelines issued from time to time, either by the State
Government or the Central Adoption Resource Agency
(CARA) and notified by the Central Government have
been followed in the given case. Further, r. 33(2) of the
Juvenile Justice (Care and Protection of Children) Rules
2007 makes it clear that “for all matters relating to
adoption, the guidelines issued by CARA and notified by
the Central Government under sub-s. (3) of s.41 of the
Act, shall apply.” The Guidelines for Adoption from India,
2006 (Guidelines of 2006) stand repealed by the
Guidelines Governing the Adoption of Children, 2011
(Guidelines of 2011). By virtue of the provisions of r. 33(2)
it is the Guidelines of 2011 notified u/s 41(3) of the JJ Act
which will now govern all matters pertaining to intercountry adoptions virtually conferring on the said
Guidelines a statutory flavour and sanction. [para 8-9]
[961-B-E; 962-A, D-E]
Lakshmi Kant Pandey v. Union of India 1984 (2)
SCR 795 = (1984) 2 SCC 244 – referred to
H
1.2. The claim of the appellant along with
STEPHANIE JOAN BECKER v. STATE AND ORS.
953
consequential relief, if any, will have to be necessarily
considered on the basis of the law as in force on date,
namely, the provisions of the JJ Act and the Rules
framed thereunder and the Guidelines of 2011. The
appellant’s case for adoption has been sponsored by an
agency (Journeys of the Heart, USA) rendering service
in USA which is recognized by CARA. The Home Study
Report of the family of the appellant indicates that the
appellant apart from being financially solvent is a person
of amicable disposition who has developed affinity for
Indian culture and Indian children. The appellant, though
unmarried, has the support of her brother and other
family members who have promised to look after the child
in the event such a situation becomes necessary for any
reason whatsoever. Each and every norm of the adoption
process spelt out under the Guidelines of 2006, as well
as the Guidelines of 2011, has been adhered to. If the
foreign adoptive parent is otherwise suitable and willing,
and consent of the child had also been taken (as in the
instant case) and the expert bodies engaged in the field
are of the view that the adoption process would end in a
successful blending of the child in the family of the
appellant in USA, the appellant cannot be said to be
disqualified or disentitled to the relief(s) sought by her in
the proceedings in question, and the Court must lean in
favour of the proposed adoption. [para 9-11] [962-G; 963C-D; 964-H; 965-A-D]
1.3. Therefore, the appellant is appointed as the legal
guardian of the minor female child and is granted
permission to take the child to USA. CARA will issue the
necessary conformity certificate as contemplated under
clause 34(4) of the Guidelines of 2011. [para 11] [965-E-G]
954
A
referred to
[2013] 1 S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1053 of 2013.
From the Judgment & Order dated 09.07.2012 of the High
Court of Delhi at New Delhi in F.A.O. No. 425 of 2010.
B
B
C
Ankur Goel, S. Ramamani, Binu Tamta, Priya Hingorani,
Sushma Suri, Anant Asthna, Jyoti Mendiratta for the
C Respondents.
Pinky Anand, Natasha Shehrawat, Prabal Bagchi, Amit
Kumar, Vivek Narayan Sharma for the Appellant.
The Judgment of the Court was delivered by
RANJAN GOGOI, J. 1. Leave granted.
D
E
F
G
Case Law Reference:
1984 (2) SCR 795
A
SUPREME COURT REPORTS
para 5
H
2. The rejection of the applications filed by the appellant
under Sections 7 and 26 of the Guardians and Wards Act, 1890
(hereinafter for short the “Guardians Act”) by the learned Trial
Court vide its order dated 17.09.2010 in Guardianship Case
No. 2 of 2010 and the affirmation of the said order made by
E the High Court of Delhi by its order dated 09.07.2012 in FAO
No. 425 of 2010 has been put to challenge in the present
appeal. By the application filed under Section 7 of the
Guardians Act, the appellant had sought for an order of the
Court appointing her as the guardian of one female orphan child
Tina aged about 10 years whereas by the second application
F
filed under Section 26 of the Guardians Act the appellant had
sought permission of the Court to take the child Tina out of the
country for the purpose of adoption.
D
3. The rejection of the aforesaid two applications by the
G learned Trial Court as well as by the High Court is on a sole
and solitary ground, namely, that the appellant, being a single
prospective adoptive parent, was aged about 53 years at the
relevant point of time whereas for a single adoptive parent the
maximum permissible age as prescribed by the Government
H of India Guidelines in force was 45. Though a no objection,
STEPHANIE JOAN BECKER v. STATE AND ORS.
[RANJAN GOGOI, J.]
955
956
which contained an implicit relaxation of the rigour of the A
Guidelines with regard to age, has been granted by the Central
Adoption Resource Authority (CARA), the High Court did not
consider it appropriate to take the said no objection/relaxation
into account inasmuch as the reasons for the relaxation granted
were not evident on the face of the document i.e. no objection B
certificate in question.
4. To understand and appreciate the contentious issues
that have arisen in the present appeal, particularly, the issues
raised by a non-governmental organization that had sought
impleadment in the present proceedings (subsequently C
impleaded as respondent No. 4) it will be necessary to take
note of the principles of law governing inter-country adoption,
a short resume of which is being made hereinbelow. But before
doing that it would be worthwhile to put on record that the
objections raised by the Respondent No.4, pertain to the D
legality of the practice of inter country adoption itself, besides
the bonafides of the appellant in seeking to adopt the child
involved in the present proceeding and the overzealous role of
the different bodies involved in the process in question resulting
E
in side stepping of the laid down norms.
5. The law with regard to inter-country adoption, indeed,
was in a state of flux until the principles governing giving of
Indian children in adoption to foreign parents and the procedure
that should be followed in this regard to ensure absence of any F
abuse, maltreatment or trafficking of children came to be laid
down by this Court in Lakshmi Kant Pandey v. Union of India1.
The aforesaid proceedings were instituted by this Court on the
basis of a letter addressed by one Lakshmi Kant Pandey, a
practicing advocate of this Court with regard to alleged
G
malpractices indulged in by social and voluntary organizations
engaged in the work of offering Indian children in adoption to
foreign parents. After an elaborate consideration of the various
dimensions of the questions that arose/were raised before the
1.
(1984) 2 SCC 244.
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
Court and the information laid before it by the Indian Council
of Social Welfare, Indian Council of Child Welfare, SOS
Children’s Villages of India (respondent No. 2 herein) and also
certain voluntary organizations working in the foreign
jurisdictions, this Court, after holding in favour of inter country
adoption, offered elaborate suggestions to ensure that the
process of such adoption is governed by strict norms, and a
well laid down procedure to eliminate the possibility of abuse
or misuse in offering Indian children for adoption by foreign
parents is in place. This Court in Lakshmi Kant Pandey (supra)
also laid down the approach that is required to be adopted by
the courts while dealing with applications under the Guardians
and Wards Act seeking orders for appointment of foreign
prospective parents as guardians of Indian children for the
eventual purpose of adoption. Such directions, it may be
noticed, was not only confined to hearing various organizations
like the Indian Council for Child Welfare and Indian Council of
Social Welfare by issuance of appropriate notices but also the
time period within which the proceedings filed before the Court
are to stand decided. Above all, it will be necessary for us to
notice that in Lakshmi Kant Pandey (supra) this Court had
observed that :
“Of course, it would be desirable if a Central Adoption
Resource Agency is set up by the Government of India with
regional branches at a few centres which are active in
inter-country adoptions. Such Central Adoption Resource
Agency can act as a clearing house of information in
regard to children available for inter-country adoption and
all applications by foreigners for taking Indian children in
adoption can then be forwarded by the social or child
welfare agency in the foreign country to such Central
Adoption Resource Agency and the latter can in its turn
forward them to one or the other of the recognized social
or child welfare agencies in the country.”
6. Pursuant to the decision of this Court in Lakshmi Kant
Pandey (supra) surely, though very slowly, the principles
STEPHANIE JOAN BECKER v. STATE AND ORS.
[RANJAN GOGOI, J.]
957
governing adoption including the establishment of a central
body, i.e., Central Adoption Resource Authority (CARA) took
shape and found eventual manifestation in a set of elaborate
guidelines laid down by the Government of India commonly
referred to as the Guidelines For Adoption from India 2006
(hereinafter referred to as “the Guidelines of 2006”). A reading
of the aforesaid Guidelines indicates that elaborate provisions
had been made to regulate the pre-adoption procedure which
culminates in a declaration by the Child Welfare Committee that
the child is free for adoption. Once the child (abandoned or
surrendered) is so available for adoption the Guidelines of 2006
envisage distinct and separate steps in the process of adoption
which may be usefully noticed below :
SUPREME COURT REPORTS
958
A
A
B
B
C
C
Govt. Department of the receiving country. If the
documents are in any language other than English,
then the originals must be accompanied by attested
translations
·
A copy of the application of the prospective
adoptive parents along with the copies of the HSR
and other documents will have to be forwarded to
RIPA by the Enlisted Foreign Adoption Agency
(EFAA) or Central Authority of that country.
(2)
Role of Recognized Indian Placement Agency
(RIPA)
·
On receipt of the documents, the Indian Agency will
make efforts to match a child who is legally free for
inter-country adoption with the applicant.
·
In case no suitable match is possible within 3
months, the RIPA will inform the EFAA and CARA
with the reasons therefore.
(3)
Child being declared free for inter-country
adoption - Clearance by ACA
·
Before a RIPA proposes to place a child in the Inter
country adoption, it must apply to the ACA for
assistance for Indian placement.
(1) Enlisted Foreign Adoption Agency (EFAA)
·
·
·
The applicants will have to contact or register with
an Enlisted Foreign Adoption Agency (EFAA)/
Central Authority/Govt. Deptt. in their country, in
which they are resident, which will prepare the a
Home Study Report (HSR) etc. The validity of
“Home Study Report” will be for a period of two
years. HSR report prepared before two years will
be updated at referral.
The applicants should obtain the permission of the
competent authority for adopting a child from India.
Where such Central Authorities or Government
departments are not available, then the applications
may be sent by the enlisted agency with requisite
documents including documentary proof that the
applicant is permitted to adopt from India
The adoption application dossier should contain all
documents prescribed in Annexure-2. All
documents are to be notarized. The signature of the
notary is either to be attested by the Indian
Embassy/High Commission or the appropriate
D
E
D
E
[2013] 1 S.C.R.
F
F
·
The child should be legally free for adoption. ACA
will find a suitable Indian prospective adoptive
parent within 30 days, failing which it will issue
clearance certificate for inter-country adoption.
G
G
·
ACA will issue clearance for inter-country adoption
within 10 days in case of older children above 6
years, siblings or twins and Special Needs Children
as per the additional guidelines issued in this
regard.
H
H
STEPHANIE JOAN BECKER v. STATE AND ORS.
[RANJAN GOGOI, J.]
·
·
·
959
In case the ACA cannot find suitable Indian parent/
parents within 30 days, it will be incumbent upon the
ACA to issue a Clearance Certificate on the
31st day.
A
If ACA Clearance is not given on 31st day, the
clearance of ACA will be assumed unless ACA has
sought clarification within the stipulation period of
30 days.
B
NRI parent(s) (at least one parent) HOLDING Indian
Passport will be exempted from ACA Clearance,
but they have to follow all other procedures as per
the Guidelines.
(4) Matching of the Child Study Report with Home
Study Report of FPAP by RIPA
·
C
D
A
B
C
D
After a successful matching, the RIPA will forward
the complete dossier as per Annexure 3 to CARA
for issuance of “No Objection Certificate”.
(5) Issue of No Objection Certificate (NOC) by
CARA
·
RIPA shall make application for CARA NOC in
case of foreign/PIO parents only after ACA
Clearance Certificate is obtained.
·
CARA will issue the ‘NOC’ within 15 days from the
date of receipt of the adoption dossier if complete
in all respect.
·
If any query or clarification is sought by CARA, it
will be replied to by the RIPA within 10 days.
·
960
E
SUPREME COURT REPORTS
[2013] 1 S.C.R.
(6) Filing of Petition in the Court
·
On receipt of the NOC from CARA, the RIPA shall
file a petition for adoption/guardianship in the
competent court within 15 days.
·
The competent court may issue an appropriate
order for the placement of the child with FPAP.
·
As per the Hon’ble Supreme Court directions, the
concerned Court may dispose the case within 2
months.
(7) Passport and Visa
·
RIPA has to apply in the Regional Passport Office
for obtaining an Indian Passport in favour of the
child.
·
The concerned Regional Passport Officer may
issue the Passport within 10 days.
·
Thereafter the VISA entry permit may be issued by
the Consulate/Embassy/High Commission of the
concerned country for the child.
E
(8) Child travels to adoptive country
·
F
G
No Indian Placement Agency can file an application
in the competent court for inter-country adoption
without a “No Objection Certificate” from CARA.
H
The adoptive parent/parents will have to come to
India and accompany the child back to their country.
7. Even after the child leaves the country the Guidelines
of 2006 contemplate a process of continuous monitoring of the
welfare of the child through the foreign placement agency until
the process of adoption in the country to which the child has
been taken is completed, which process the Guidelines
contemplate completion within two years. The monitoring of the
G welfare of the child after the process of adoption is complete
and the steps that are to be taken in cases where the adoption
does not materialize is also contemplated under the Guidelines
of 2006. As the said aspects are not relevant for the purposes
of the present adjudication the details in this regard are not
H being noticed. What, however, would require emphasis, at this
F
STEPHANIE JOAN BECKER v. STATE AND ORS.
[RANJAN GOGOI, J.]
961
stage, is that by and large the Guidelines of 2006 framed by
the Ministry of Women and Child Development are in
implementation of the decision of this Court in the case of
Lakshmi Kant Pandey (supra).
8.Two significant developments in the law governing
adoptions may now be taken note of. Section 41 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter
for short the “JJ Act”) was amended by Act 33 of 2006 by
substituting sub-Sections 2, 3 and 4 by the present provisions
contained in the aforesaid sub-Sections of Section 41. The
aforesaid amendment which was made effective from
22.8.2006 is significant inasmuch as under sub-Section 3
power has been conferred in the Court to give a child in
adoption upon satisfaction that the various guidelines issued
from time to time, either by the State Government or the CARA
and notified by the Central Government have been followed in
the given case. The second significant development in this
regard is the enactment of the Juvenile Justice (Care and
Protection of Children) Rules 2007 by repeal of the 2001 Rules
in force. Rule 33 (2) makes it clear that “for all matters relating
to adoption, the guidelines issued by the Central Adoption
Resource Agency and notified by the Central Government under
sub-section (3) of Section 41 of the Act, shall apply.” Rule 33
(3) in the various sub-clauses (a) to (g) lays down an elaborate
procedure for certifying an abandoned child to be free for
adoption. Similarly, sub-rule (4) of Rule 33 deals with the
procedure to be adopted for declaring a surrendered child to
be legally free for adoption. Once such a declaration is made,
the various steps in the process of adoption spelt out by the
Guidelines of 2006, details of which have been extracted
hereinabove, would apply finally leading to departure of the child
from the country to his/her new home for completion of the
process of adoption in accordance with the laws of the country
to which the child had been taken. In this regard the order of
the courts in the country under Section 41(3) of the JJ Act would
be a step in facilitating the adoption of the child in the foreign
962
A
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A country.
B
B
C
C
D
D
E
E
F
F
G
G
H
H
9.It will also be necessary at this stage to take note of the
fact that the Guidelines of 2006 stand repealed by a fresh set
of Guidelines published by Notification dated 24.6.2011 of the
Ministry of Women and Child Development, Government of
India under Section 41(3) of the JJ Act. The time gap between
the coming into effect of the provisions of Section 41(3) of the
JJ Act i.e. 22.08.2006 and the publication of the 2011
Guidelines by the Notification dated 24.6.2011 is on account
of what appears to be various procedural steps that were
undertaken including consultation with various bodies and the
different State Governments. A reading of the Guidelines of
2011 squarely indicate that the procedural norms spelt out by
the 2006 Guidelines have been more elaborately reiterated and
the requirements of the pre-adoption process under Rules 33(3)
and (4) have been incorporated in the said Guidelines of 2011.
As a matter of fact, by virtue of the provisions of Rule 33(2) it
is the Guidelines of 2011 notified under Section 41(3) of the
JJ Act which will now govern all matters pertaining to intercountry adoptions virtually conferring on the said Guidelines a
statutory flavour and sanction. Though the above may not have
been the position on the date of the order of the learned trial
court i.e. 17.9.2010, the full vigour of Section 41(3) of the JJ
Act read with Rule 33 (2) of the Rules and the Guidelines of
2011 were in operation on the date of the High Court order i.e.
9.7.2012. The Notification dated 24.06.2011 promulgating the
Guidelines of 2011 would apply to all situations except such
things done or actions completed before the date of the
Notification in question, i.e., 24.06.2011. The said significant
fact apparently escaped the notice of the High Court. Hence
the claim of the appellant along with consequential relief, if any,
will have to be necessarily considered on the basis of the law
as in force today, namely, the provisions of the JJ Act and the
Rules framed thereunder and the Guidelines of 2011 notified
on 24.6.2011. In other words, if the appellant is found to be so
entitled, apart from declaring her to be natural guardian and
STEPHANIE JOAN BECKER v. STATE AND ORS.
[RANJAN GOGOI, J.]
963
grant of permission to take the child away from India a further
order permitting the proposed adoption would also be called
for. Whether the order relating to adoption of the child should
be passed by this Court as the same was not dealt with in the
erstwhile jurisdictions (trial court and the High Court) is an
incidental aspect of the matter which would require
consideration.
10. The facts of the present case, as evident from the
pleadings of the parties and the documents brought on record,
would go to show that the appellant’s case for adoption has
been sponsored by an agency (Journeys of the Heart, USA)
rendering service in USA which is recognized by CARA. The
Home Study Report of the family of the appellant indicates that
the appellant apart from being gainfully employed and financially
solvent is a person of amicable disposition who has developed
affinity for Indian culture and Indian children. The appellant,
though unmarried, has the support of her brother and other
family members who have promised to look after the child in
the event such a situation becomes necessary for any reason
whatsoever. The Child Study Report alongwith medical
examination Report prepared by the recognized agency in India
has been read and considered by the appellant and it is only
thereafter that she had indicated her willingness to adopt the
child in question. Before permitting the present process of inter
country adoption to commence, all possibilities of adoption of
the child by an Indian parent were explored which however did
not prove successful. The matter was considered by the No
Objection Committee of the CARA and as stated in the affidavit
of the said agency filed before this Court, the No Objection
Certificate dated 03.02.2010 has been issued keeping in mind
the various circumstances peculiar to the present case, details
of which are as hereunder :
964
A
A
B
B
C
C
D
D
E
E
F
F
G
G
SUPREME COURT REPORTS
[2013] 1 S.C.R.
. The Prospective parent was 54 years of age, which is
within the age up to which adoption by foreign prospective
parent is permissible after relaxation i.e. 55 years.
. The Prospective Adoptive Parent is otherwise also
suitable as she is financially stable and there are three
reference letters supporting adoption of the child by her.
The Home study report of the prospective parent (Ms.
Stephanie Becker) shows the child as kind, welcoming,
caring and responsible individual with physical, mental
emotional and financial capability to parent a female child
up to age of seven years from India.
. Procedures such as declaration of the child as legally free
for adoption by CWC Child Welfare Committee (CWC);
ensuring efforts for domestic adoption and clearance of
Adoption Coordinating Agency; and taking consent of older
child had been followed.
. Follow-up of the welfare of the child was to be properly
done through Journeys of the Hearts, USA, the authorized
agency which had also given an undertaking to ensure the
adoption of child Tina according to the laws in USA within
a period not exceeding two years from the date of arrival
of the child in her new home. The agency has also
committed to send follow-up reports as required.
. The Biological brother of the prospective parent, Mr.
Philip Becker Jr. and his wife Ms. Linda Becker have given
an undertaking on behalf of the single female applicant to
act as legal guardian of the child in case of any unforeseen
event to the adoptive parent. This is another important
safeguard.
. Article 5 from the Office of Children’s Issues, US
Department of State allowing child Tina to enter and reside
permanently in the United States and declaring suitability
of the prospective adoptive parent, was available.”
. “Child Tina was an older female child (aged 7 years when
the NOC was issued) and thus relaxation was permissible
as per the guidelines.
H
H
STEPHANIE JOAN BECKER v. STATE AND ORS.
[RANJAN GOGOI, J.]
965
11. In view of the facts as stated above which would go to
show that each and every norm of the adoption process spelt
out under the Guidelines of 2006, as well as the Guidelines of
2011, has been adhered to, we find that the apprehension
raised by the intervener, though may have been founded on
good reasons, have proved themselves wholly unsubstantiated
in the present case. If the foreign adoptive parent is otherwise
suitable and willing, and consent of the child had also been
taken (as in the present case) and the expert bodies engaged
in the field are of the view that in the present case the adoption
process would end in a successful blending of the child in the
family of the appellant in USA, we do not see as to how the
appellant could be understood to be disqualified or disentitled
to the relief(s) sought by her in the proceedings in question. It
is our considered view that having regard to the totality of the
facts of the case the proposed adoption would be beneficial
to the child apart from being consistent with the legal entitlement
of the foreign adoptive parent. If the above is the net result of
the discussions that have preceded, the Court must lean in
favour of the proposed adoption. We, therefore, set aside the
orders dated 17.09.2010 in Guardianship Case No. 2 of 2010
passed by the learned Trial Court and the order dated
09.07.2012 in FAO No. 425 of 2010 passed by the High Court
of Delhi and appoint the appellant as the legal guardian of the
minor female child Tina and grant permission to the appellant
to take the child to USA. In view of the provisions of Section
41(3) of the JJ Act and to avoid any further delay in the matter
which would be caused if we were to remand the aforesaid
aspect of the case to the learned Trial Court, only on the ground
that the same did not receive consideration of the learned Court,
we deem it appropriate to pass necessary orders giving the
child Tina in adoption to the appellant. The CARA will now issue
the necessary conformity certificate as contemplated under
clause 34(4) of the Guidelines of 2011. The appeal
consequently shall stand allowed in the above terms.
R.P.
Appeal allowed.
[2013] 1 S.C.R. 966
A
A
KUM. MICHAEL
v.
REGIONAL MANAGER ORIENTAL INSURANCE CO. LTD.
& ANR.
(Civil Appeal No. 1100 of 2013)
B
B
FEBRUARY 11, 2013
[G.S. SINGHVI AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
C
C
D
D
E
E
F
G
H
Motor Vehicles Act, 1988:
Motor accident – Compensation for permanent disability,
loss of amenities etc. – Held: Appellant at the age of eight
years suffered a dreadful accident resulting into a severe
injury in his right leg which has virtually created a deformity
in the said leg and he has to suffer with the disability for the
rest of his life – Age of the appellant is, therefore, a very
relevant factor while determining the compensation –
Accordingly, compensation of Rs. 1 lakh as enhanced by
High Court is further enhanced to Rs. 4 lakhs with 6% interest
on the enhanced amount from date of petition till realization
– Delay/laches.
The appellant, a male child of 8 years, was hit by a
motor cycle, as a result of which his right leg got
F fractured and even after treatment, he suffered terminal
restrictions of joint movements of right knee and total
restriction of dorsiflexion of right ankle joint. Further the
right lower limb got shortened by 1 cm as compared to
opposite limb. The disability was assessed at 16% to the
G whole body. The Tribunal allowed a total compensation
of Rs. 77,000/- (as against the claim of Rs. 4 lakhs), which
was enhanced by the High Court to Rs. 1 lakh. The
claimant filed the appeal for further enhancement of the
compensation.
H
966
KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE
CO. LTD.
967
Allowing the appeal, the Court
HELD: 1.1. There was delay of 323 days in filing the
appeal. The respondents have not contested the appeal.
This Court is satisfied with the reasons adduced in
support of the petition for condonation of delay. The
delay stands condoned. [para 2] [969-C-D]
1.2. The appellant, at the age of 8 years, suffered a
dreadful accident resulting into a severe injury in his right
leg which has virtually created a deformity in the said leg
and he has to suffer with the disability for the rest of his
life. The age of the appellant was, therefore, a very relevant
factor while determining the compensation payable. The
sufferance of such physical disaster, cannot be measured
in terms of money precisely, yet having regard to the
present day living conditions and the extent to which the
aspirations of the appellant came to be demolished by
suffering a permanent disability for no fault of his, it
becomes the responsibility of the respondent to
adequately compensate whatever sufferings undergone
by the appellant at that time and immediately after the
accident as well as the mental agony that is being suffered
by the appellant life long. [para 10] [972-G-H, 973-A-C]
R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd. and
Others – AIR 1955 SC 755; Ashwani Kumar Mishra v. P.
Muniam Babu and Others 1999 (2) SCR 518 = (1999) 4 SCC
22; The Divisional Controller, K.S.R.T.C. V. Mahadeva Shetty
and Another 2003 (2) Suppl. SCR 14 = AIR 2003 SC 4172;
B.T. Krishnappa v. D.M. United Insurance Co. Ltd. & Anr.
2010 (5) SCR 657 = AIR 2010 SC 2630 – relied on
1.3. Keeping in view the various disadvantages
suffered by the appellant as a result of the accident, he
is entitled to still higher amount than what has been
granted by the Tribunal as well as the High Court on
account of pain and sufferings as well as loss of
968
A
B
C
D
E
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A amenities, and permanent disability. Though it will be
impossible to make a precise assessment of the pain and
suffering of the appellant considering the age at which
the appellant met with the accident and the consequent
disability and also taking note of the deprivement of better
B prospects in the life of the appellant due to the physical
disability suffered, the compensation is determined in a
sum of Rs.4 lacs as claimed by the appellant under the
heads enumerated in the judgment. Interest shall be
payable on enhanced compensation @ 6% per annum
C from the date of petition till the date of realization. Since
the appellant is now 19 years old, this Court declares him
as major. The Tribunal shall release the compensation
amount to him as and when it is deposited by the first
respondent. [para 15-16] [975-G-H; 976-A-B, E-F]
D
E
Case Law Reference:
AIR 1955 SC 755
relied on
para 11
1999 (2) SCR 518
relied on
para 12
2003 (2) Suppl. SCR 14 relied on
para 13
2010 (5) SCR 657
para 14
relied on
CIVIL APPELLATE JURISDICTION : CIVIL APPEAL NO.
1100 OF 2013.
F
F
From the Judgment & Order dated 15.09.2010 of the High
Court of Karnataka at Bangalore in M.F.A. No. 7863 of 2004
(M.V.)].
G
G
V.N. Raghupathy for the Appellant.
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This
petition is directed against the Division Bench judgment of the
H
H
KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE
CO. LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
969
High Court of Karnataka at Bangalore dated 15.09.2010
passed in M.F.A. No.7863 of 2004 (MV).
2. While hearing the S.L.P. on 06.01.2012 notice was
ordered on the application for condonation of delay as well as
on the main special leave petition and Dasti service was also
permitted. After the service of notice, it was reported that the
respondents did not enter appearance. As there was no
representation on behalf of the respondents, the record of
Courts below was called for. There was delay of 323 days in
filing this petition. As the respondents have not bothered to
contest this petition, we heard learned counsel for the appellant
both on application for condonation of delay as well as on
merits. As we are satisfied with the reasons adduced in the
application filed in support of the condonation of delay petition,
the delay stands condoned.
970
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
A doing his third standard at that time and due to the accident,
as per the evidence of P.W.2 the doctor, who attended on him
and who also subsequently examined him on 14.01.2004
noticed the following physical impairments:
B
B
C
C
D
D
“1.
Painful limp
2.
Wasting & Weakness of muscles of right limb.
3.
Tenderness right with joint line tenderness of right
knee.
4.
Terminal restrictions of joint movements of right
knee by last, 20 degrees and total restriction of
dorsiflexion of right ankle joint.
5.
Shortening of 1 cm of right lower limb (compared
to opposite limb)
3. Leave granted.
4. We perused the judgment of the Motor Accident Claims
Tribunal, Bangalore dated 02.07.2004 passed in M.V.C.
No.248 of 2002, original record as well as the Division Bench
Judgment impugned in this appeal. There was no dispute about
the accident that occurred on 25.10.2001 at about 3:30 p.m.
on the 1st Main Road, 2nd Cross, Valmikhinagar, Mysore
Road, Bangalore. In the said accident the appellant who was
then aged eight years was hit by Hero Puch Motor Cycle
bearing Registration No.KA-09-J-4982 which belonged to the
second respondent, by its rider. The manner in which the
accident took place was vividly stated by P.W.1 who was none
another than the father of the appellant himself and who was
an eye witness to the accident. After the accident, the appellant
was stated to have been admitted in Victoria Hospital and that
he was treated as inpatient between 29.10.2001 to 10.11.2001
for a period of 12 days. The appellant suffered injuries in his
right leg which was fractured coupled with lower third
displacement, Plaster of Paris was applied to the right leg,
which was removed after three months. The appellant was
He has assessed the disability to the extent of 16% to the
whole body because of these accidental injuries.”
E
F
G
H
5. It was also in medical evidence that the appellant
E continued to take follow-up treatment subsequently. In support
of the medical evidence, apart from the version of P.W.2
Doctor, Exhibit P-4 the copy of accident register maintained
at Victoria Hospital, Exhibit P-5 the discharge summary, Exhibit
P-6 the inpatient record, Exhibit P-7 the outpatient record and
F Exhibit P-8 the X-ray were all produced. P.W.2 subsequently
stated that there was a shortening of 1 cm of right lower limb
as compared to the opposite limb.
6. Keeping the above factors in mind as there was no
G evidence placed on the side of respondents except the marking
of the policy Exhibit R-1, the Tribunal held that the second
respondent as the owner and the first respondent as the insurer
were liable to pay compensation. The Tribunal computed the
compensation payable under the following heads:
H
KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE
CO. LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
“For pain, agony, trauma, injury & suffering
971
Rs.35,000/-
972
A
Medical expenses as per bills and other
Incidental charges like Conveyance,
special
Rs.12,000/B
Diet, Attendant charges, nourishment etc
Loss of amenities in life
Rs.30,000/Total
Rs.77,000-
Thus the petitioner is entitled for total compensation of Rs.
77,000/-.”
7. Being aggrieved of the quantum of compensation
determined by the Tribunal in a sum of Rs.77,000/- as against
his claim of four lacs, the appellant approached the High Court
by filing M.F.A. No.7863 of 2004 (MV). The Division Bench of
the High Court while confirming the judgment of the Tribunal as
regards the liability for payment of compensation by the
respondents, however, enhanced the same to a sum of Rs.1
lac under the following heads:
Towards pain and sufferings
Rs.40,000/-
Towards medical expenses,
conveyance, nourishing food and
attendant charges
Rs . 2 0, 00 0/ -
Towards loss of amenities
Rs.40,000/-
Total
C
D
E
F
Rs.1,00,000/-
8. Being aggrieved of the judgment of the Division Bench,
the appellant is before us. Having heard learned counsel for the
appellant and the respondents not being represented either in
person or through counsel and having perused the orders
impugned in this appeal, the original records and other material
papers, we are of the considered opinion that for various
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A reasons stated herein the appellant was entitled for higher
compensation than what has been ordered by the Tribunal as
well as the Division Bench of the High Court. In this context when
we refer to the evidence of P.W.2, as noted in the earlier part
of this judgment, even after about three years of the accident
B the appellant continued to have a painful limp, weakness of
muscle of right limb, tenderness in the joint line of right knee
and terminal restrictions of joint movements of right knee and
total restrictions of dorsiflexion of right ankle joint. That apart,
there was shortening of 1 cm of right lower limb as compared
C to opposite limb. In the assessment of the doctor, the appellant
suffered a permanent disability of 16% to the whole body
because of the injuries sustained in the accident.
9. According to P.W.1 though he took the appellant to the
hospital immediately after the accident, due to non-availability
D of bed facility he was advised to admit him after three days
during which period the appellant suffered severe pain. The
appellant was inpatient for 12 days as shown by Exhibit P-5
discharge summary. Appellant had suffered fracture of both
bones of right leg with displacement. Plaster of Paris applied
E on the right leg of the appellant could be removed only after
three months. Even after the discharge and removal of Plaster
of Paris, as per the evidence, the appellant continued to visit
the hospital for follow-up treatment. It has to be remembered
that at the time the accident took place the appellant was an
F eight year old boy doing his third standard with all aspirations
in life as spoken to by P.W.1 to involve himself in sports
activities which could not be fulfilled by virtue of the accident.
10. De hors the evidence of P.W.1 considering the age
G at which the appellant suffered a dreadful accident in which the
appellant suffered a severe injury in his right leg which has
virtually created a deformity in the said leg, for the rest of his
life the appellant has to suffer with the disability. The age of the
appellant was, therefore, a very relevant factor while
H
KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE
CO. LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
973
determining the compensation payable as the sufferance of
such physical disaster, that too on his right leg cannot be
measured in terms of money precisely but yet having regard
to the present day living conditions and the extent to which the
aspirations of the appellant came to be demolished by suffering
a permanent disability for no fault of his, it becomes the
responsibility of the respondent to adequately compensate
whatever sufferings undergone by the appellant at that time and
immediately after the accident as well as the mental agony that
is being suffered by the appellant life long.
11. In this context the reliance placed upon by the Tribunal
in the decision reported in R.D. Hattangadi V. M/s. Pest
Control (India) Pvt. Ltd. and Others – AIR 1955 SC 755 was
apposite. That was a case where an Advocate of 52 years met
with an accident who suffered serious injuries resulting in 100%
disability and paraplegia below the waist. The said claimant
apart from claiming compensation on other heads made a
claim for pain and suffering and loss of amenities of life in a
sum of Rs.3 lacs each. As against claim of Rs.6 lacs, the High
Court granted a sum of Rs.1 lac. This Court considering the
claim for non-pecuniary loss stated as under in paragraphs 9
and 17:
“9. Broadly speaking while fixing an amount of
compensation payable to a victim of an accident, the
damages have to be assessed separately as pecuniary
damages and special damages. Pecuniary damages are
those is the victim has actually incurred and which are
capable of being calculated in terms of money; whereas
non-pecuniary damages are those which are incapable of
being assessed by arithmetical calculations. In order to
appreciate two concepts pecuniary damages may include
expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other
material loss. So far non-pecuniary damages are
concerned, they may include (i) damages for mental and
974
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[2013] 1 S.C.R.
physical shock, pain and suffering, already suffered or likely
to be suffered in future; (ii) damages to compensate for
the loss of amenities of life which may include a variety of
matters, i.e., on account of injury the claimant may not be
able to walk, run or sit; (iii) damages for the loss of
expectation of life, i.e., on account of injury the normal
longevity of the person concerned is shortened; (iv)
inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life.
17. The claim under Sl. No. 16 for pain and suffering and
for loss of amenities of life under Sl. No. 17, are claims
for non-pecuniary loss. The appellant has claimed lump
sum amount of Rs.3,00,000 each under the two heads. The
High Court has allowed Rs.1,00,000 against the claims of
Rs.6,00,000. When compensation is to be awarded for
pain and suffering and loss of amenity of life, the special
circumstances of the claimant have to be taken into
account including his age, the unusual deprivation he has
suffered, the effect thereof on his future life. The amount
of compensation for non-pecuniary loss is not easy to
determine but the award must reflect that different
circumstances have been taken into consideration.
According to us, as the appellant was an advocate having
good practice in different courts and as because of the
accident he has been crippled and can move only on
wheelchair, the High Court should have allowed an amount
of Rs.1,50,000 in respect of claim for pain and suffering
and Rs.1,50,000 in respect of loss of amenities of life. We
direct payment of Rs.3,00,000 (Rupees three lakhs only)
against the claim of Rs.6,00,000 under the heads ‘Pain
and Suffering’ and ‘Loss of amenities of life’.”
12. The above-said ratio was subsequently followed in the
decision reported in Ashwani Kumar Mishra V. P. Muniam
Babu and Others – (1999) 4 SCC 22 for enhancing the
compensation on account of loss of expectation to life besides
KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE
CO. LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
975
disappointment, frustration and mental stress suffered by the
claimant therein.
13. The said decision was also followed in The Divisional
Controller, K.S.R.T.C. V. Mahadeva Shetty and Another – AIR
2003 SC 4172.
976
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14. In B.T. Krishnappa V. D.M. United Insurance Co. Ltd.
& Anr. – AIR 2010 SC 2630, where one of us (Hon. Mr. Justice
G.S. Singhvi) was a party, has held in paragraphs 17 and 18
as under:
C
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“17. Long expectation of life is connected with earning
capacity. If earning capacity is reduced, which is the case
in the present situation, that impacts life expectancy as well.
18. Therefore, while fixing compensation in cases of injury
D
affecting earning capacity the Court must remember:
“… No amount of compensation can restore the physical
frame of the appellant. That is why it has been said by
courts that whenever any amount is determined as the
compensation payable for any injury suffered during an E
accident, the object is to compensate such injury ‘so far
as money can compensate’ because it is impossible to
equate the money with the human sufferings or personal
deprivations. Money cannot renew a broken and shattered
physical frame.” [See R.D. Hattangadi v. Pest Control F
(India) (P) Ltd & Others, (1995) 1 SCC 551: (AIR 1995)
SC 755 : 1955 AIR SCW 243) at page 556, para 10.]”
15. Having bestowed our serious consideration and having
noted the various disadvantages suffered by the appellant by
G
virtue of the accident, we are convinced that the appellant is
entitled for still higher amount than what has been granted by
the Tribunal as well as the High Court on account of pain and
sufferings as well as loss of amenities. As held by us earlier,
though it will be impossible to make a precise assessment of
the pain and suffering of the appellant considering the age at H
SUPREME COURT REPORTS
which the appellant met with the accident and the consequent
disability and also taking note of the deprivement of better
prospects in the life of the appellant due to the physical disability
suffered, we determine the compensation in a sum of Rs.4 lacs
as claimed by the appellant under the following heads:
Towards pain and sufferings and
permanent disability
Rs.1,00,000/
Total
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F
Rs.2,80,000/-
Towards medical expenses, conveyance,
nourishing food and attendant charges
Rs.20,000/Towards loss of amenities
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[2013] 1 S.C.R.
Rs.4,00,000/-
16. Consequently, the impugned judgment of the Division
Bench in M.F.A. No.7863/2004 (MV) dated 15.09.2010 and the
award of the Tribunal in M.V.C. No.248/2002 dated 02.07.2004
stand modified, granting a compensation of Rs.4 lacs. The
enhanced compensation comes to Rs.3 lacs with interest at 6%
per annum from the date of petition till the date of realization.
The first respondent-Insurance Company is directed to deposit
the enhanced compensation with interest within six weeks from
today. Since the appellant was aged 8 years at the time of the
accident, namely, 25.10.2001 and eleven years have gone by,
he is now 19 years old. We, therefore, declare him as major
and direct the Tribunal to release the compensation amount to
him as and when it is deposited by the first respondent as
directed in the judgment. Accordingly, the appeal stands
allowed with the above directions.
G
R.P.
Appeal allowed.
[2013] 1 S.C.R. 977
T.P. VISHNU KUMAR
v.
CANARA BANK P.N. ROAD, TIRUPPUR & ORS.
(SLP (C) Nos. 1258-1260 of 2013)
FEBRUARY 11, 2013
978
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[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Constitution of India, 1950 – Article 226 – Writ jurisdiction
under – In the matter of recovery of dues to the Bank under
Recovery of Debts Act – Original application filed by Bank
before Debt Recovery Tribunal – The defendants filing
applications before Tribunal for direction to the Bank to
produce certain documents – Application dismissed – Writ
Petition – Single Judge of High Court holding that documents
were necessary for filing Additional Written Statement –
Division Bench of High Court allowed Writ Appeal holding that
the defendant had alternative remedy available u/s. 20 of the
Act – On appeal, held: When specific remedy is available u/
s. 20, interference in exercise of jurisdiction under Article 226
is not justified – Powers under Article 226 cannot be invoked
in the matter of recovery of dues under the Act, unless there
is any statutory violation resulting in prejudice to party or
where such proceedings are arbitrary, unreasonable and
unfair – Single Judge decided the matter on merit which is
impermissible in exercise of jurisdiction under Article 226 –
Intervention of the writ court has delayed the proceedings for
four years defeating the very purpose and object of the Act –
Recovery of Debts Due to Financial Institutions Act, 1993 –
s. 20 – Administration of Justice.
E
F
The respondent-Bank filed Original Application G
against the petitioner and respondent Nos. 2 to 6 before
Debts Recovery Tribunal for recovery of total amount of
Rs. 1,59,51,477.93 with interest @ 17%. The appellant and
977
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[2013] 1 S.C.R.
respondent Nos. 2 to 6 filed interim applications before
the tribunal seeking a direction to produce the extract of
accounts as well as documents relating to banking
transactions. The applications were rejected on the
ground that the intention of the petitioner was only to
delay the proceedings. Petitioner challenged the order of
the Tribunal in a Writ Petition. Single Judge of High Court
allowed the petition holding that the documents were
necessary for the purpose of filing additional written
statement. Division Bench of High Court allowed the writ
appeal, holding that alternative remedy was available u/
s. 20 of the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993. Hence the present
petition.
Dismissing the petition, the Court
HELD: 1. Debt Recovery Tribunals in the country are
established for expeditious adjudication and recovery of
debts due to banks and financial institutions. The
Recovery of Debts due to Banks and Financial
E Institutions Act, 1993 provides the mechanism to an
aggrieved party, if he is dissatisfied with an order passed
by the tribunal. Section 20 of the Act says that any person
aggrieved by an order made, or deemed to have been made,
by a Tribunal under the Act may prefer an appeal to an
F Appellate Tribunal having jurisdiction in the matter. When a
specific remedy is made available to the aggrieved party
under Section 20 of the Act, the Single Judge of the High
Court, in exercise of its jurisdiction under Article 226 of
the Constitution of India, was not justified in interfering
with the orders passed by the Debt Recovery Tribunal.
G
[Paras 6 and 8] [981-E-H; 982-A-B, E-F]
2. Powers of the High Court under Article 226 cannot
be invoked in the matter of recovery of dues under the
Act, unless there is any statutory violation resulting in
H
T.P. VISHNU KUMAR v. CANARA BANK P.N. ROAD, 979
TIRUPPUR
prejudice to the party or where such proceedings or
action is wholly arbitrary, unreasonable and unfair. When
the Act itself provides for a mechanism, by an appeal
under Section 20 of the Act, the High Court is not justified
in invoking jurisdiction under Article 226 to examine that
the rejection of the applications by the tribunal was
correct or not. The petitioner and the contesting
respondents have no case that either the Bank or the
Tribunal had violated any statutory provisions by
rejecting their applications. Writ petition was preferred
against the rejection of applications and the same were
entertained by the Single Judge of High Court and
decided on merits, which is impermissible while
exercising its jurisdiction under Article 226 of the
Constitution. If the correctness of otherwise of each and
every interim order passed by the Tribunal, is going to be
tested in a writ court, it will only defeat the object and
purpose of establishing such tribunal. In the instant case,
due to the intervention of the writ court, the matter got
delayed for four years defeating the very purpose and
object of the Act. [Paras 9 and 10] [982-G-H; 983-A-C]
980
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S. Thananjayan for the Petitioner.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Canara Bank, Tiruppur
(first respondent herein) filed O.A. No. 152 of 2002 before Debt
Recovery Tribunal, Coimbatore for a decree directing the
defendants therein to pay a sum of Rs.29,68,161.93 with
interest at 17% per annum, being the amount on account of
Open Cash Credit facilities; a sum of Rs.30,82,758 being the
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[2013] 1 S.C.R.
A amount due on account of packing credit facilities and a sum
of Rs.99,00,558 being the amount due for Foreign Bills of
Exchange facilities and also for a further direction.
CIVIL APPELLATE JURISDICTION : SLP (Civil) Nos.
1258-1260 of 2013.
From the Judgment & Order dated 04.09.2012 of the High
Court of Judicature at Madras in W.A. Nos. 559 to 561 of 2009.
SUPREME COURT REPORTS
2. The petitioner and respondent nos. 2 to 6 herein
preferred I.A. No. 873 to 875 of 2007 before the Tribunal
seeking a direction to produce the extract of accounts as well
as documents relating to banking transactions. Those
applications were opposed by the bank contending that none
of the documents sought for were germane to the issue to be
decided in the applications but only to protract the proceedings.
The applications were rejected by the tribunal on the ground
that the intention of the petitioner was only to delay the
proceedings, against which the petitioner herein filed writ
petition nos. 14428-14430 of 2008 before the High Court of
judicature at Madras. It was contended before the learned
Single Judge of the High Court that the documents and
accounts paid for are absolutely necessary for the purpose of
filing additional written statement and that the bank cannot
withhold those documents. The prayer was opposed by the
bank stating that none of the documents sought for were
germane to the issue to be decided and attempt was only to
protract the proceedings. Further, it was also contended that
in view of the matter, the petitioner had an alternative remedy
available under the Act.
3. Learned Single Judge passed an elaborate order and
allowed the writ petition and held that the petitioner therein had
made out a case for production of documents sought for in I.A.
Nos. 873 to 875 of 2007 except the promissory notes which
were reported to be untraceable. Canara Bank took up the
matter in appeal before the Division Bench by filing writ appeal
G
Nos. 559 to 561 of 2009. Writ appeals were allowed holding
that the petitioner had not availed of the alternative remedy
available under Section 20 of the Recovery of Debs due to
Banks and Financial Institutions Act, 1993 (for short ‘the Act’).
Aggrieved by the same, this appeal has been preferred.
H
T.P. VISHNU KUMAR v. CANARA BANK P.N. ROAD, 981
TIRUPPUR [K.S. RADHAKRISHNAN, J.]
4. We have heard learned counsel for the petitioner. This
is a classic case which shows how the parties can protract
proceedings in fiscal matters. Parties as well as the system
have contributed to the delay. At every stage of the proceedings
there was delay. Facts disclosed that Canara Bank had filed
the application in the year 2002 vide O.A. No. 152 of 2002 for
total amount of Rs. 1,59,51,477.93 with interest and the OA
stands at the stage at which it was filed, not-an inch forward.
5. I.A. Nos. 873 to 875 of 2007 were filed by the petitioner
as well as respondent Nos. 2 to 6 before the Tribunal after a
period of five years of filing the original applications.
Applications were dismissed by the Tribunal on 18.02.2008.
Writ petitions filed in the year 2008 were allowed by the learned
Single Judge on 07.11.2008. Writ appeals were filed before
the Division Bench by the Canara Bank in the year 2009, which
could be disposed of only after a period of 3 years. Bank’s
appeals were allowed, since the contesting respondents did
not avail of the alternative remedy available under the Act.
6. Debt Recovery Tribunals in the country are established
for expeditious adjudication and recovery of debts due to banks
and financial institutions. It was noticed that banks and financial
institutions have been experiencing considerable difficulties in
recovering loans and enforcement of securities charged with
them and therefore the actual need was felt to work out a
suitable mechanism through which the dues to the banks and
financial institutions could be realized without delay. It was
noticed that on 30.09.1990 more than fifteen lacs of cases filed
by the public sector banks and about 304 cases filed by the
financial institutions were pending in various courts, recovery
of debts involved more than Rs.5622 crores in dues of public
sector banks and about 391 crores of dues of the financial
institutions. The locking up of such huge amount of money in
litigation, it was noticed, prevents proper utilization and recycling
of the funds for the development of the country. It is in the above
scenario, Parliament enacted The Recovery of Debts due to
982
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[2013] 1 S.C.R.
A Banks and Financial Institutions Act, 1993 (Act 51 of 1993).
The Act itself provides the mechanism to an aggrieved party,
if he is dissatisfied with an order passed by the tribunal. Section
20 of the Act says that any person aggrieved by an order
made, or deemed to have been made, by a Tribunal under
B the Act may prefer an appeal to an Appellate Tribunal having
jurisdiction in the matter.
7. Section 18 of the Act deals with Bar of Jurisdiction
which says:
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“On and from the appointed day, no court or other authority
shall have, or be entitled to exercise, any jurisdiction,
powers or authority (except the Supreme Court, and a
High Court exercising jurisdiction under articles 226 and
227 of the Constitution) in relation to the matters specified
in section 17.”
8. Powers, which were conferred on the civil court, now
stands conferred on a Tribunal under Section 17 of the Act
thereby it can deal with applications from banks and financial
institutions for recovery of debts due to such banks and financial
E
institutions. We are of the view when a specific remedy is made
available to the aggrieved party under Section 20 of the Act,
learned Single Judge of the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution of India, was
not justified in interfering with the orders passed by the Debt
F Recovery Tribunal.
9. Powers of the High Court under Article 226 cannot be
invoked in the matter of recovery of dues under the Act, unless
there is any statutory violation resulting in prejudice to the party
G or where such proceedings or action is wholly arbitrary,
unreasonable and unfair. When the Act itself provides for a
mechanism, by an appeal under Section 20 of the Act, in our
view, the High Court is not justified in invoking jurisdiction under
Article 226 of the Constitution of India to examine that the
H rejection of the applications by the tribunal was correct or not.
T.P. VISHNU KUMAR v. CANARA BANK P.N. ROAD, 983
TIRUPPUR [K.S. RADHAKRISHNAN, J.]
The petitioner and the contesting respondents have no case
that either the bank or the tribunal had violated any statutory
provisions by rejecting their applications.
10. Writ petition was preferred against the rejection of
applications and the same were entertained by the learned
Single Judge and decided on merits and which in our view is
impermissible while exercising its jurisdiction under Article 226
of the Constitution. If the correctness of otherwise of each and
every interim order passed by the Tribunal, is going to be tested
in a writ court, it will only defeat the object and purpose of
establishing such tribunal. We already noticed that due to the
intervention of the writ court, the matter got delayed for four
years defeating the very purpose and object of the Act. We,
therefore, find no merit in these petitions and the same are
dismissed.
K.K.T.
Petitions dismissed.
[2013] 1 S.C.R. 984
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NASIB KAUR AND ORS.
v.
COL. SURAT SINGH (DECEASED) THROUGH L.RS &
ORS.
(Civil Appeal No. 1276 of 2013 etc.)
FEBRUARY 12, 2013.
[A.K. PATNAIK AND H. L. GOKHALE, JJ.]
Code of Civil Procedure, 1908:
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s.100 – Second appeal – Substantial question of law –
Suits for declaration and permanent injunction – Decreed by
High Court reversing the finding of first appellate court – Held:
Evidence on record has established that defendants were in
D lawful possession of suit land by virtue of sale deeds and
plaintiff had not been able to establish that he was owner
thereof and, consequently, entitled to declaration of his title,
recovery of possession and injunction – Therefore, the first
appellate court had decided the core issue against the plaintiff
and no substantial question of law arose for decision in case
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by High Court u/s 100 –Judgment and decree of High Court
set aside.
The respondent in C.A No. 1276 sold some lands,
which were further sold by the vendee to the contesting
F defendants/appellants. The respondent filed a suit
against original vendee and his transferees, for
declaration that he was the owner and in possession of
the suit land. The trial court protected the possession of
the contesting defendants till the partition was effected.
G The appeal of the respondent was dismissed. The
respondent filed another suit for permanent injunction
restraining the defendants from raising any construction
on the suit land and alienating the same. The trial court
dismissed the suit. The first appellate court dismissed the
984
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NASIB KAUR AND ORS. v. COL. SURAT SINGH
(DECEASED) THROUGH L.RS
985
appeal of the plaintiff. The second appeals filed by the
wife of the plaintiff were allowed by High Court.
In the instant appeals filed by the contesting
defendants, it was contended for the appellants that the
first appellate court had concurred with the findings that
the appellants had purchased the suit property and were
in possession thereof and as there was no substantial
question of law in the case, the High Court erred in
reversing the concurrent findings of the courts below.
Allowing the appeals, the Court
HELD: In the instant case, the core issue was
whether the plaintiff was the owner of the suit property.
The findings of the first appellate court in the two cases
show that in the suit for declaration of title, the plaintiff
had not been able to produce any evidence to prove his
ownership and possession over the suit land; and in the
suit for injunction, the first appellate court had held that
the plaintiff had admitted in plaint that the predecessorin-interest of the defendants, had purchased the land from
the plaintiff and the joint owner. Thus, the evidence on
record has established that the appellants were in lawful
possession of the suit land by virtue of the two sale
deeds and the plaintiff had not been able to establish that
he was the owner thereof and, consequently, entitled to
declaration of his title, recovery of possession and
injunction. Therefore, the first appellate court had
decided the core issue against the plaintiff and no
substantial question of law arose for decision in case by
the High Court u/s 100, CPC. The impugned common
judgment and decree of the High Court is set aside. [para
10, 12 and 13] [993-D-F; 994-A-B; 995-D, F-G]
Ishwar Dass Jain vs. Sohan Lal 1999 (5) Suppl.
SCR 24 = (2000) 1 SCC 434; Achintya Kumar Saha vs.
986
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[2013] 1 S.C.R.
A Nanee Printers and Others 2004 (2) SCR 28 = (2004) 12 SCC
368 – cited.
Case Law Reference:
B
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1999 (5) Suppl. SCR 24 cited
para
2004 (2) SCR 28
para
cited
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1276 of 2013.
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From the Judgment & Order dated 11.11.2009 of the High
Court of Punjab & Haryana at Chandigarh in Regular Second
Appeal No. 2579 of 1997.
WITH
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C.A. No. 1277 of 2013.
M.L. Saggar, Seeraj Baggar, Rajinder Mathur for the
Appellants.
R.B.S. Chahal, Jyotika Kalra for the Respondents.
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The Judgment of the Court was delivered by
A.K. PATNAIK, J. 1. Leave granted.
F
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2. These are the appeals against the common judgment
dated 11.11.2009 of the High Court of Punjab and Haryana in
R.S.A. Nos. 2579 of 1997 and 2482 of 2008 by way of special
leave under Article 136 of the Constitution.
3. The facts very briefly are that Col. Surat Singh filed Civil
Suit No. 735-T on 18.04.1987 for declaration that the plaintiff
G was the owner and was in possession of suit land. The plaintiff’s
case in the suit was that while he was in joint holding of some
land, he sold 2 bighas and 16 biswas of land out of his share
without specifying any khasra nos. to Col. Girdhar Singh and
his family members (defendant nos. 1 to 4) and thereafter
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NASIB KAUR AND ORS. v. COL. SURAT SINGH
(DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
987
defendant nos. 1 to 4 sold the land in pieces to defendant nos.
5 to 8 in the suit specifying the khasra nos. and mutation nos.
1120 and 1174. As the plaintiff did not sell the land specifying
the khasra nos. to Col. Girdhar Singh and his son, they had no
right to sell specific pieces of land with specific khasra nos. The
plaintiff’s further case in the plaint was that the specific khasra
nos. which had been mutated in favour of defendant nos. 3, 4
and 5 were not in accordance with the registered sale deed in
favour of Col. Girdhar Singh and his family members.
Defendant Nos. 1 to 4 did not contest the suit, whereas
defendant Nos. 5 to 8 appeared and filed their written
statements. On the pleadings of the parties, the trial court
framed issues and by its judgment and decree dated
20.02.2004 found that the areas of land sold under the sale
deed dated 17.07.1978 by the plaintiff was less by 1 Biswas
than the area in the mutation entries and similarly the area of
land sold by the plaintiff as Attorney of Nanak Singh was less
than the area shown in the mutation entries. The trial court,
therefore, ordered for correction of the mutation entries, but
directed that the corrections to be carried out would have no
effect as regards the possession of the suit property, which has
to continue as before and would be liable to be changed as
and when any partition proceeding is effected between the cosharers. Col. Surat Singh filed an appeal C.A. No. 1721 on
20.03.2004 before the Additional District Judge, Patiala, but
by judgment and decree dated 18.03.2008 the Additional
District Judge, Patiala, dismissed the appeal.
4. Col. Surat Singh also filed Civil Suit No. 148-T on
09.03.1987 for permanent injunction restraining the defendants
from raising any construction on the suit property or alienating
the same in any manner whatsoever. The plaintiff’s case in the
suit was that he sold 2 bighas and 16 biswas of land out of the
joint holding of his own share without specifying any khasra nos.
to one Col. Girdhar Singh and his son on 17.07.1978 and Col.
Girdhar Singh has thus become a co-sharer to the extent of 2
bighas and 16 biswas in his joint holding of the property. Col.
988
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A Girdhar Singh, however, did not file any partition proceedings
seeking partition of his share out of the joint holding. Thereafter,
Col. Girdhar Singh sold the share to the extent of 2 bighas and
16 biswas of land to the defendants in February, 1987 and the
defendants are now threatening to raise a new construction near
B the farm house of the plaintiff in a place of their choice on the
plea that they had purchased the land without specific khasra
nos. from Col. Girdhar Singh. The defendants contested the suit
by filing a written statement and their plea in the written
statement inter alia was that their predecessor-in-interest (Col.
C Girdhar Singh and his son) had purchased the suit property
from the plaintiff and his uncle, Nanak Singh, vide sale deeds
dated 17.07.1978 and 19.07.1979 and the plaintiff has himself
delivered possession of the property purchased by their
predecessor-in-interest without khasra nos. Their further plea
in the written statement was that Col. Girdhar Singh had
D
constructed his kothi and quarters and planted Eucalyptus trees
on the suit property and the plaintiff has not raised any objection
and the plaintiff was, therefore, estopped by his act and conduct
from filing the suit. On the pleadings of the parties, the trial court
framed issues and in its judgment and decree dated
E 18.08.1998 held that the plaintiff has sold 4 bighas and 16
biswas of land to Col. Girdhar Singh and others which is in
possession of the defendants and hence the plaintiff was not
entitled to injunction. Aggrieved, Col. Surat Singh filed an
appeal C.A. No. 16-T/1989-90 before the learned District
F Judge, Patiala, but by judgment and decree dated 16.05.1997,
the Additional District Judge, Patiala, dismissed the appeal.
5. Aggrieved by the judgments and decrees passed by the
Additional District Judge, Patiala, dismissing the two civil
G appeals, the wife of the plaintiff, Smt. Dulari Singh, filed second
appeals R.S.A. nos. 2579 of 1997 and 2482 of 2008 before
the High Court and by the impugned common judgment, the
High Court allowed the appeals and set aside the judgments
and decrees of the trial court and the first appellate court in the
H two suits and decreed the suit of the plaintiff for possession qua
NASIB KAUR AND ORS. v. COL. SURAT SINGH
(DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
989
land measuring 17 karams X 45 karams after declaring the
plaintiff to be the owner of the said property. The High Court
has also held that the plaintiff was entitled for relief of permanent
injunction restraining the defendants from raising any
construction in the said property or alienating the said property.
Aggrieved, the defendants nos. 5 to 8 in Civil Suit No.735-T/
18.04.1987 and the legal heirs of defendants nos. 1 and 2 and
the other defendants in Civil Suit No. 148-T/09.03.1987 have
filed these appeals.
6. Learned counsel appearing for the appellants submitted
that in both the suits, the trial court recorded findings that the
appellants had purchased the suit property from Col. Girdhar
Singh and his family members to whom the plaintiff had himself
delivered possession of the suit property in the years 1978 and
1979 at the time of execution of the two sale deeds and hence
the appellants were in possession of the suit properties and
the first appellate court had also concurred with those findings
and dismissed the First Appeals of the respondents but the High
Court reversed the judgments of the trial court and the first
appellate court. He submitted that the High Court’s jurisdiction
under Section 100 of the Code of Civil Procedure, 1908, (for
short the ‘the CPC’) was limited to only deciding substantial
questions of law which arise in a case and in this case there
was no substantial question of law which arose for decision and,
therefore, the findings of the first appellate court affirming the
findings of the trial court could not have been disturbed by the
High Court.
7. Learned counsel for the respondents, on the other hand,
submitted that this Court has held in Ishwar Dass Jain vs Sohan
Lal [(2000) 1 SCC 434] that when material evidence is not
considered, which if considered, would have led to an opposite
conclusion, a substantial question of law arises for decision
which the High Court can decide in a Second Appeal under
Section 100 C.P.C. He submitted that the High Court had,
therefore, framed a substantial question of law in the impugned
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A judgment: whether the courts below have failed to consider the
material evidence on record. He submitted that the core issue
in this case is the very identity of the land sold by the plaintiff
as Attorney of Nanak Singh and the trial court and the High
Court had not addressed this core issue and hence a substantial
B question of law had arisen for decision by the High Court. He
relied on Achintya Kumar Saha vs. Nanee Printers and Others
[(2004) 12 SCC 368] in support of this submisson. He
submitted that the High Court answered the aforesaid
substantial question of law in favour of the respondents after
C considering the material evidence led in the suit. He submitted
that the High Court found on the basis of the evidence that was
adduced in the suit by the parties that Col. Surat Singh
(plaintiff), as Attorney on behalf of Nanak Singh, had sold two
bighas of land with regard to specific khasra nos. i.e. 167 min
(1-10) and 166 min (0-10) by sale deed Ex.PW-7/2 and the
D
appellants by virtue of the sale deed in their favour took
possession of the portion marked EHGF in the site plan
Ex.PW-9/A whereas the portion sold was in the western side
of portion marked ABCD as the said portion was owned by
Nanak Singh. He submitted that the High Court has held in the
E impugned judgment that the portion on the eastern side, i.e.,
marked with letters EHGF belongs to the plaintiff Col. Surat
Singh and has accordingly declared that the land measuring
17 karams X 45 karams as depicted with letters EHGF in site
plan Ex.PW-9/A was owned by plaintiff Col. Surat Singh and
F the plaintiff was entitled to the relief of permanent injunction
restraining the defendant from raising any construction in the
aforesaid suit property or alienating the aforesaid suit property.
8. We find that in Civil Suit No. 735-T/18.04.1987, plaintiff
G Col. Surat Singh had prayed for declaration, injunction and
possession and the suit was partly decreed for correction of
some mutation entries but the trial court clearly held that it would
in no manner have any effect upon the possession of the parties
to the suit which may be determined and finalized as and when
H partition proceedings are taken up and decided. Against the
NASIB KAUR AND ORS. v. COL. SURAT SINGH
(DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
991
decree of the trial court, the plaintiff filed first appeal C.A. No.
1721 on 20.03.2004 and the Additional District Judge held by
its judgment and decree dated 18.03.2008 that the trial court
is right in coming to the conclusion that plaintiff had not
produced cogent evidence that he was the owner of the suit
property. Relevant extract from para 29 of the judgment of the
first appellate court which records the aforesaid findings and
discusses the evidence in support of the finding is quoted
hereinbelow:
“It was incumbent upon the plaintiff to produce on record,
the revenue record relating to the suit property, so as to
ascertain the share of the plaintiff, as alleged by him. The
perusal of jamabandi Ex.PW-4/1 for the year 1978-79;
jamabandi Ex.PW-7/V for the year 1978-79; jamabandi
Ex.PW-4/1 show that these pertain only to land measuring
29 bighas 5 biswas, which is recorded to be the
ownernship of Col. Surat Singh and other co sharers and
in possession of one Baghel Singh. Jamabandi Ex.DW7/
V pertains to land measuring 29 bighas 5 biswas + 9
bighas 12 biswas + 0-4 biswas which is recorded to be
the ownership of Col. Surat Singh and other co-sharers and
only land measuring 9 bighas 12 biswas comprised in
khasra No.165(3-1), 166(3-0), 167(1-16) and 168(1-15) is
recorded in exclusive possession of Col. Surat Singh. The
trial court has rightly held that other than the said revenue
record no jamabandi of the suit land has been produced
by the plaintiff. It has further rightly held that as per sanad
takseem Ex.PW7/A the land has been partitioned between
different co-sharers, which is mentioned as 72 bighas 8
biswas of which 15 bighas 12 biswas fell to the share of
Col. Surat Singh. But even when the plaintiff has filed the
present suit for declaring his to be owner in possession
of the suit property, he did not bring forth on file any
revenue record pertaining to the suit property except
jamabandies Ex.PW4/1 and Ex.PW7/V pertaining to the
year 1978-79 which are in complete and do not depict the
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entire property of Col. Surat Singh as a co-sharer along
with other co-sharers. Trial court has rightly held that extent
of ownership and possession of the plaintiff as alleged by
him was to be proved by him, by brining on record
documents from which he drew his title over the suit
property. But no revenue record in the form of jamabandi
has been produced on record, so as to prove the extent
of ownership and possession of the plaintiff, so in the
absence of any documentary proof regarding ownership
of the suit property and the revenue record produced by
the plaintiff being incomplete and relating to the year 197879, whereas the present suit was filed in 1987, copy of the
sanad Takseem Ex.PW7/A depicting the share of Col.
Surat Singh, are not sufficient to establish the extent of the
property of which Col. Surat Sigh was the owner. Though,
Sanad Takseem Ex.PW7/A was prepared on 30.8.92, but
no revenue record after the preparation of the sanad
takseem has been produced, so as to prove that the
possession has been delivered and partition had been
duly acted upon.”
9. We find that in Civil Suit No. 148-T/9-3-1987, the plaintiff
Col. Surat Singh had prayed for permanent injunction
restraining the defendant from raising any construction or
alienating in any manner whatsoever on the suit property and
on the basis of the pleadings of the parties one of the issues
F framed was whether the defendants are owners and are in
possession of the property purchased by them from Col.
Girdhar Singh and others but by order dated 08.08.1990 the
trial court deleted this issue and finally by judgment dated
08.08.1990 dismissed the suit. The plaintiff thereafter filed Civil
G Appeal No.16 on 19.09.1990 and contended before the
Additional District Judge inter alia that the trial court was not
right in deleting Issue No.2 by order dated 08.08.1990 at the
stage when the parties had already led their evidence on that
issue and the decision on this issue was necessary for deciding
H
NASIB KAUR AND ORS. v. COL. SURAT SINGH
(DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
993
the suit itself but the Additional District Judge rejected this
contention of the plaintiff with the following reasons:
“The simple prayer of the plaintiff made in the suit is that
the defendants be restrained from raising construction over
the suit land, or alienating the same. He has admitted in
his plaint and replication that the predecessor-in-interest
of the defendants; namely, Girdhar Singh, purchased the
land from him and Nanak Singh, while the same was still
joint. Naturally the defendants will become co-sharers in
the land after purchasing the same from Girdhar Singh, as
they would step into his shoes. In these circumstances,
there was no necessity for framing an issue that the
defendants are the owners of the suit land.”
10. The aforesaid discussion of the findings of the first
appellate court in the two cases shows that in the suit for
declaration of title, the plaintiff had not been able to produce
any evidence to prove his ownership over and possession over
the suit land. Moreover, in the suit for injunction, the first
appellate court had held that the plaintiff had admitted in plaint
that Col. Girdhar Singh, the predecessor-in-interest of the
defendants, had purchased the land from him and Nanak Singh
while the same was joint and hence there was no necessity for
framing the issue (issue No.2) that the defendants are owners
and are in possession of the suit land. We find on a reading of
the sale deed dated 17.07.1978 (Ex.PW7/1) executed by the
plaintiff that possession of land measuring 2 bighas 16 biswas
out of the share of the plaintiff was handed over to Col. Girdhar
Singh and his family members and it is not in dispute that Col.
Girdhar Singh and his family members thereafter sold this land
to the appellants. We also find on a reading of the sale deed
dated 19.07.1979 (Ex.PW7/2) executed by the plaintiff as
Attorney of Nanak Singh that the possession of the land
measuring 2 bighas out of the share of Nanak Singh was also
given to Col. Girdhar Singh and his family members and it is
not in dispute that Col. Girdhar Singh and his family members
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A thereafter sold this land to the appellants in 1987. Thus, the
appellants were in lawful possession of the said areas of land
by virtue of the two sale deeds and the plaintiff had not been
able to establish that he was the owner of the suit land and
consequently he is entitled to declaration of his title, recovery
B of possession and injunction.
C
11. The plaintiff, however, contended in the second appeal
before the High Court that material evidence had not been
taken into consideration by the first appellate court and the High
Court has framed the following substantial question of law:
“Whether the Courts below have failed to consider the
material evidence on record?”
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Having framed the substantial question of law, the High
D Court should have pointed out in the impugned judgment the
material evidence which had not been considered by the first
appellate court, which if considered, would have established
ownership of the plaintiff to the suit property. Instead of pointing
out the material evidence which has not been considered by
E the first appellate court, the High court has made its own
assessment of the entire evidence as if it was the first appellate
court and held that the plaintiff was the owner of the suit property
and was entitled to possession of 17 karams X 45 karams of
land depicted in letters EHGF in the site plan Ex.PW-9/A and
that he was also entitled to the relief of permanent injunction
F
restraining the plaintiff from raising any construction in the said
property or alienating the said property. The High Court has
itself noticed in the impugned judgment that the land depicted
in the site plan Ex.PW-9/A as EHGF was delivered to Col.
Girdhar Singh and his family members at the time of execution
G of the sale deed by the plaintiff as Attorney of Nanak Singh on
19.07.1979 and the appellants had taken possession of the
aforesaid land from Col. Girdhar Singh and his family members
in 1987. The appellants were, thus, in legal possession of the
suit property and the High Court in exercise of its powers under
H
NASIB KAUR AND ORS. v. COL. SURAT SINGH
(DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
995
Section 100 CPC could not have reversed the findings of the
trial court and the first appellate court and decreed the suits for
declaration of title and for recovery of possession and injunction
in favour of the respondents so as to adversely affect such legal
possession of the appellants.
12. In Achintya Kumar Saha vs. Nanee Printers and
Others (supra) cited by learned counsel for the respondents,
this Court found that the main issue around which the entire
case revolved was whether the agreement dated 05.07.1976
was a licence or a tenancy and though this issue was before
the trial court and the agreement was held to be a licence, the
lower appellate court had not adjudicated upon this issue and
this Court held that when the core issue is not adjudicated upon,
it raises a substantial question of law under section 100 CPC.
In the present case, the core issue was whether the plaintiff was
the owner of the suit property and the first appellate court has
held in C.A. No. 1721 on 20.03.2004 that the plaintiff has not
been able to prove his ownership over the suit property and has
further held in C.A. No.16-T filed on 19.09.1990 that the
plaintiff’s own admitted case in the plaint is that the appellants
had purchased the suit property from Col. Girdhar Singh and
his family members and were in possession of the same and
hence the plaintiff was not entitled to declaration of his title,
recovery of possession and injunction. In this case, therefore,
the first appellate court had decided the core issue against the
plaintiff and no substantial question of law arose for decision
in this case by the High Court under Section 100, CPC.
13. In the result, these appeals are allowed and the
impugned common judgment and decree of the High Court is
set aside. Considering, however, the peculiar facts and
circumstances of the case, the parties shall bear their own
costs.
R.P.
[2013] 1 S.C.R. 996
A
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BHIMANDAS AMBWANI (D) THR. LRS.
v.
DELHI POWER COMPANY LIMITED & ORS.
(Civil Appeal Nos. 204-205 of 2004)
FEBRUARY 12, 2013
[DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.]
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Appeals allowed.
H
Land Acquistion Act,1894 – ss.4 and 6 – Successive
Notifications under s.4/ Declarations under s.6 – Effect – Held:
The effect would be that earlier notification/declaration stands
obliterated/ superseded and in such a fact-situation, it would
not be permissible for either of the parties to make any
reference to the said notifications/ declarations which stood
superseded – On facts, s.4 Notification dated 26.3.1983 and
Declaration u/s.6 dated 13.5.1983 superseded all earlier
notification/declaration – However, no proceedings were taken
in pursuance of the said notification/declaration issued in the
year 1983 and after commencement of the Amendment Act
1987, the said notification/declaration made in the year 1983
stood elapsed as no award had been made within the period
stipulated under the Act –Thus, there can be no sanctity to
any of the acquisition proceedings initiated by the
respondents so far as the suit land is concerned, though the
appellants stood dispossessed from his land in pursuance of
the Notification u/s.4 dated 5.3.1963 –Appellants had been
dispossessed without resorting to any valid law providing for
acquisition of land, thus, entitled for restoration of possession
of the land in dispute –However, considering the fact that
possession of the land was taken over about half a century
ago and a full-fledged residential colony of employees of
DESU has been constructed on the said land, therefore, it
would be difficult for respondent no.1 to restore the possession
– In such a fact-situation, the only option left out to the
respondents is to make the award treating s.4 notification as,
996
BHIMANDAS AMBWANI (D) THR. LRS. v. DELHI
POWER COMPANY LIMITED
997
on this date, i.e. 12.2.2013 – Land Acquisition Collector
directed to make award after hearing the parties within a period
of four months – Appellants at liberty to file a reference u/s.18
of the Act and to pursue remedies available under the Act –
Appellants shall be entitled to all statutory benefits.
Bhutnath Chatterjee v. State of West Bengal & Ors.
(1969) 3 SCC 675; Land Acquisition Officer-cum-RDO,
Chevella Division, Ranga Reddy District v. A. Ramachandra
Reddy & Ors. AIR 2011 SC 662: 2011 (1) SCR 324;
Raghunath & Ors. v. State of Maharashtra & Ors. AIR 1988
SC 1615: 1988 (3) SCC 294; Hindustan Oil Mills Ltd. & Anr.
v. Special Deputy Collector (Land Acquisition) AIR 1990 SC
731: 1990 (1) SCC 59; Raipur Development Authority v.
Anupan Sahkari Griha Nirman Samiti & Ors. (2000) 4 SCC
357: 2000 (2) SCR 781 and Tukaram Kana Joshi & Ors. thr.
Power of Attorney Holder v. Maharashtra Industrial
Development Corporation & Ors. (2013) 1 SCC 353 – relied
on.
998
relied on
Para 7
2011 (1) SCR 324
relied on
Para 8
1988 (3) SCC 294
relied on
Para 8
1990 (1) SCC 59
relied on
Para 8
2000 (2) SCR 781
relied on
Para 8
(2013) 1 SCC 353
relied on
para 10,11
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
204-205 of 2004.
A C.A. No. 203 of 2004.
B
Amit Sibal, Arvind Kumar, Purti Marwaha, Henna George,
C.S. Chauhan, Anupam Lal Das, A. Ahlawat, Rani Chhabra,
Vishnu B. Saharya (for Saharya & Co.) for the appearing
B parties.
The following Order of the Court was delivered
ORDER
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From the Judgment & Order dated 22.03.2002 of the High
Court of Delhi at New Delhi in LPA No. 46 of 1983.
WITH
[2013] 1 S.C.R.
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Case Law Reference:
(1969)3 SCC675
SUPREME COURT REPORTS
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CIVIL APPEAL NOS. 204-205 OF 2004
1.These appeals have been preferred against the
impugned judgment and order dated 22.3.2002, passed by
Delhi High Court in LPA No. 46 of 1983 and judgment and order
D
dated 21.5.2002 passed in Review Application C.M. No.893
of 2002 therein by way of which the appeal filed by the
respondents against the judgment and order of the learned
Single Judge dated 26.11.1982 had been allowed.
E
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2. Facts and circumstances giving rise to these appeals
are that :A. The appellants had been conferred title over the land in
Khasra No.307 admeasuring 3 bighas and 3 biswas situate in
the revenue estate of village Kilokri, Delhi and the Conveyance
Deed for the same was registered on behalf of the President
of India in favour of the appellant on 6.6.1962.
A Notification under Section 4 of the Land Acquisition Act,
G 1894 (hereinafter referred to as the ‘Act’) was issued on
5.3.1963 in respect of the land admeasuring 139 bighas and
2 biswas including the aforesaid land of the appellants. A
declaration under Section 6 of the Act was made in respect of
the said land on 22.8.1963. The Land Acquisition Collector
H made the award under the Act on 29.11.1963. However, no
BHIMANDAS AMBWANI (D) THR. LRS. v. DELHI
POWER COMPANY LIMITED
999
award was made in respect of the land measuring 23 bighas
and 7 biswas including the suit land as it had been shown to
be the land of Central Government. However, the possession
of the land in respect of which the award was made and the
land transferred to the appellant was also taken and the Union
of India handed it over to Delhi Electric Supply Units (for short
‘DESU’) for the construction of staff quarters on 5.7.1966. The
appellants claimed to have been deprived of the land without
paying any compensation whatsoever, thus, there was a regular
correspondence by the appellants and in view thereof Section
4 Notification under the Act was issued on 7.10.1968 in respect
of the land admeasuring 31 bighas and 15 biswas including the
land in dispute. The said Notification under Section 4 was not
acted upon, but a supplementary award No. 1651-A dated
16.2.1974, was made in respect of the land in dispute, making
reference to Section 4 Notification dated 5.3.1963.
B. Aggrieved, Predecessor in interest of the appellants
filed Writ Petition No.307 of 1972 before Delhi High Court and
the said writ petition was disposed of vide judgment and order
dated 26.11.1982 making it clear that acquisition proceedings
emanating from Notification dated 5.3.1963 came to an end
rather stood superseded by second Notification dated
7.10.1968 and therefore, supplementary award No.1651-A
dated 16.2.1974 was illegal and without jurisdiction and thus,
the award was quashed. The respondents were directed to
handover the vacant possession of the suit property to the
appellants by 31.12.1983. However, liberty was given to the
State to issue a fresh Notification under Section 4 of the Act
within a period of one year and till then the possession could
be retained by the respondents.
C. It was in view thereof, a Notification dated 26.3.1983
was issued under Section 4 of the Act in respect of the suit land
and in the meanwhile, the respondents preferred LPA No.46
of 1983 against the said judgment and order of the learned
Single Judge dated 26.11.1982.
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D. Declaration under Section 6 of the Act dated 30.5.1983
was issued in respect of the suit land and the respondents did
not complete the acquisition proceedings rather abandoned the
same.
E. The Division Bench allowed the said LPA vide judgment
and order dated 22.3.2002. Review Petition against the said
LPA filed by the appellant was dismissed on 21.5.2002.
Hence, these appeals.
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3. Shri Arvind Kumar and Ms. Henna George, learned
counsel appearing for the appellants have submitted that there
had been 3 successive Notifications under Section 4 of the Act.
Therefore, the second Notification superseded the first and the
third Notification superseded the second notification. In
D response to the first Section 4 Notification there was no award
as the Land Acquisition Collector considered that the suit land
belonged to the Central Government. The supplementary award
was made subsequent to the second Section 4 Notification
making reference to the first Section 4 Notification dated
5.3.1963 which had already elapsed. The learned Single Judge
E
has rightly decided the issue and in pursuance of the same once
the third Section 4 Notification was issued on 26.3.1983 and
no further proceedings were taken, it also stood elapsed.
Therefore, in law, there had been no proceedings regarding
acquisition of the land in dispute. The respondent-authorities
F cannot be permitted to encroach upon the land of the appellants
without resorting to the procedure prescribed by law. The
Division Bench erred in reversing the judgment of the learned
Single Judge under the misconception that there was a valid
award in respect of the land in dispute as it could be made
G referable to Notification under Section 4 dated 7.10.1968 and
therefore, the appeals deserve to be allowed.
C
4. Per contra, Ms. Avnish Ahlawat, learned counsel
appearing for the respondent no.1 and Shri Vishnu Saharya,
H learned counsel appearing for DDA have opposed the appeal
BHIMANDAS AMBWANI (D) THR. LRS. v. DELHI
POWER COMPANY LIMITED
1001
contending that their land had been acquired by the Union of
India and handed over to the respondent no.1 after taking the
amount of compensation from it. Therefore, the said
respondent cannot be penalised at such a belated stage for
the reason that DESU has deposited a sum of Rs.10,16,400/
- towards the price of land on 24.5.1966. The judgment of the
High Court does not require to be interfered with and thus, the
appeals are liable to be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
6. There cannot be any dispute to the settled legal
proposition that successive Notifications under Section 4 or
successive Declarations under Section 6 of the Act can be
made, however, the effect of the same would be that earlier
notification/declaration stands obliterated/ superseded and in
such a fact-situation, it would not be permissible for either of
the parties to make any reference to the said notifications/
declarations which stood superseded.
7. In Bhutnath Chatterjee v. State of West Bengal & Ors.,
(1969) 3 SCC 675, this Court held that where second Section
4 Notification has been issued, the market value is to be
determined in terms of the later notification for the reason that
there was an intention to supersede the previous notification
and if the Government did not choose to explain the reasons
which persuaded it to issue the second notification, the court
is justified in inferring that it was intended to supersede the
earlier notification by the later notification.
8. In Land Acquisition Officer-cum-RDO, Chevella
Division, Ranga Reddy District v. A. Ramachandra Reddy &
Ors., AIR 2011 SC 662, while dealing with the same issue, this
Court held:
““….. the Government after considering the facts and
circumstances, with a view to avoid further challenge,
1002
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[2013] 1 S.C.R.
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(See also : Raghunath & Ors. v. State of Maharashtra &
Ors., AIR 1988 SC 1615; Hindustan Oil Mills Ltd. & Anr. vs.
Special Deputy Collector (Land Acquisition), AIR 1990 SC
731; and Raipur Development Authority v. Anupan Sahkari
D Griha Nirman Samiti & Ors., (2000) 4 SCC 357).
E
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H
issued a fresh notification dated 9.9.1993 (gazetted on
19.11.1993) followed by final declaration dated, 16.2.1994.
The State Government did not subsequently cancel/rescind/
withdraw the notifications dated 9.9.1993 and 16.2.1994.
The State Government had clearly abandoned the earlier
notifications dated 3.1.1990 and 10.l.1990 by issuing
the subsequent notifications dated 9.91993 and
16.2.1994. The appellant cannot therefore contend that the
second preliminary notification is redundant or that first
preliminary notification continues to hold good…..”
(Emphasis added)
9. In view of the above, Section 4 Notification dated
26.3.1983 and Declaration under Section 6 dated 13.5.1983
superseded all earlier notification/declaration. However, no
E proceedings were taken in pursuance of the said notification/
declaration issued in the year 1983 and after commencement
of the Amendment Act 1987, the said notification/declaration
made in the year 1983 stood elapsed as no award had been
made within the period stipulated under the Act. Thus, there can
F be no sanctity to any of the acquisition proceedings initiated
by the respondents so far as the suit land is concerned, though
the appellants stood dispossessed from his land in pursuance
of the Notification under Section 4 dated 5.3.1963. Thus, we
have no hesitation in making a declaration that the appellants
had been dispossessed without resorting to any valid law
G
providing for acquisition of land. The Court is shocked as the
appellants had been dispossessed from the land during the
period when right to property was a fundamental right under
Articles 31A and 19 of the Constitution of India and
subsequently became a constitutional and human right under
H Article 300A.
BHIMANDAS AMBWANI (D) THR. LRS. v. DELHI
POWER COMPANY LIMITED
1003
10. This Court dealt with a similar case in Tukaram Kana
Joshi & Ors. thr. Power of Attorney Holder v. Maharashtra
Industrial Development Corporation & Ors., (2013) 1 SCC
353, and held :
“……There is a distinction, a ?true and concrete distinction,
between the principle of “eminent domain” and “police
power” of the State. Under certain circumstances, the
police power of the State may be used temporarily, to take
possession of property but the present case clearly shows
that neither of the said powers have been exercised. A
question then arises with respect to the authority or power
under which the State entered upon the land. It is evident
that the act of the State amounts to encroachment, in
exercise of “absolute power” which in common parlance
is also called abuse of power or use of muscle power. To
further clarify this position, it must be noted that the
authorities have treated the land owner as a ‘subject’ of
medieval India, but not as a ‘citizen’ under our constitution.
xx
xx
1004
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Depriving the appellants of their immovable
properties, was a clear violation of Article 21 of the
Constitution. In a welfare State, statutory authorities are
bound, not only to pay adequate compensation, but there
is also a legal obligation upon them to rehabilitate such
persons. The non-fulfillment of their obligations would
tantamount to forcing the said uprooted persons to
become vagabonds or to indulge in anti-national activities
as such sentiments would be born in them on account of
such ill-treatment. Therefore, it is not permissible for any
welfare State to uproot a person and deprive him of his
fundamental/constitutional/human rights, under the garb of
industrial development.
The appellants have been deprived of their legitimate
dues for about half a century. In such a fact-situation, we
E
F
SUPREME COURT REPORTS
[2013] 1 S.C.R.
fail to understand for which class of citizens, the
Constitution provides guarantees and rights in this regard
and what is the exact percentage of the citizens of this
country, to whom Constitutional/statutory benefits are
accorded, in accordance with the law”.
11. The instant case is squarely covered by the aforesaid
judgment in Tukaram’s case (supra) and thus, entitled for
restoration of possession of the land in dispute. However,
considering the fact that the possession of the land was taken
over about half a century ago and stood completely developed
C as Ms. Ahlawat, learned counsel has submitted that a fullfledged residential colony of employees of DESU has been
constructed thereon, therefore, it would be difficult for
respondent no.1 to restore the possession.
12. In such a fact-situation, the only option left out to the
respondents is to make the award treating Section 4
notification as, on this date, i.e. 12.2.2013 and we direct the
Land Acquisition Collector to make the award after hearing the
parties within a period of four months from today. For that
E purpose, the parties are directed to appear before Land
Acquisition Collector, C/o The Deputy Commissioner, South
M.B. Road, Saket, New Delhi on 26.2.2013. The appellants are
at liberty to file a reference under Section 18 of the Act and to
pursue the remedies available to him under the Act. Needless
F to say that the appellants shall be entitled to all statutory
benefits.
D
13. With these directions, the appeals are allowed. The
judgments impugned herein are set aside.
G
G C.A. No. 203/2004
14. In view of the order passed in C.A. Nos. 204-205/2004,
the appeal is dismissed.
H
B.B.B.
H
Appeals disposed of.
[2013] 1 S.C.R. 1005
M/S TELESTAR TRAVELS PVT. LTD. & ORS.
v.
SPECIAL DIRECTOR OF ENFORCEMENT
(Civil Appeal Nos. 1306-1309 of 2013)
FEBRUARY 13, 2013
1006
A
B
[T.S. THAKUR AND M.Y. EQBAL, JJ.]
A
SUPREME COURT REPORTS
[2013] 1 S.C.R.
Evidence:
Retracted statements – Evidentiary value of – Held:
Adjudicating Authority and Appellate Tribunal have both
correctly appreciated the legal position and applied the same
to the case at hand to hold that the statements were voluntary
B
and, therefore, binding upon appellants.
Evidence Act, 1872:
Foreign Exchange Regulation Act, 1973:
ss. 8 and 14 – Dealing in foreign exchange without
previous permission of Reserve Bank – An Indian company
dealing with a foreign company based in U.K. and money
transactions made through another company based outside
India and alleged to be a paper company – Held: There is
no reason to interfere with the concurrent findings of fact that
the company concerned was a paper company controlled by
appellants from India – There appears to be sufficient
evidence on record for the Adjudicating Authority and the
Appellate Tribunal to hold that the appellants were guilty of
violating the provisions of FERA that called for imposition of
suitable penalty against them – Appellate Tribunal has
already given relief by reducing the penalty by 50% – Keeping
in view the nature of violations and the means adopted by
appellants to do so, there is no room for any further leniency.
Adjudication Rules under FERA:
r. 3 – Delay in pronouncement of order – Held: Delay by
itself would not constitute a ground for setting aside an order
that may otherwise be found legally valid and justified – A
careful examination of the adjudication by the Authority and
that of the Appellate Tribunal and the High Court indicates
that no illegality or irregularity has been demonstrated –
Foreign Exchange Regulation Act, 1973 – s.51 –
Administrative law.
1005
C
D
E
F
G
H
s.139 – Cross-examination of person called to produce
C a document – Held: The documents relied upon by
Adjudicating Authority produced by two officials of Indian High
Commission in London, were permitted to be inspected –
Therefore, refusal of Adjudicating Authority to permit cross
examination of witnesses producing the documents cannot
D even on principles of Evidence Act be found fault with.
Appellant No. 1-travel agency was engaged in the
business of booking of tickets for crew members working
on ships. For the purpose, the appellants had
arrangement with a company based in U.K. (CTL), which
E would send Pre-paid Ticket Advice (PTA) to appellants in
India. The appellants would then secure ticket from the
air line concerned. The money for the tickets would then
be credited into the Swiss bank account of another
company (‘B’ Ltd.) registered in British Virgin Islands. ‘B’
F Ltd. would transfer the funds to CTL towards the price
of tickets after realizing 3% of the ticket price towards
commission payable to the appellant company. The
Directorate of Enforcement issued a shows cause notice
for adjudication proceedings as contemplated u/s 51 of
G the Foreign Exchange Regulation Act, 1973 stating that
‘B’ Ltd. was only a paper company and was entirely a
holding of the appellant company and was being
controlled by it. The Adjudicating Authority, by order
dated 29.3.2001, held the appellant-company guilty of
H
TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1007
DIRECTOR OF ENFORCEMENT
violation of provisions of ss. 8 and 14 of FERA, and
imposed upon it a penalty of Rs.90,000/- for contravening
s.14 and Rs.85,00,000/- for contravention of s.8(1) of
FERA. A consolidated penalty of Rs.20,00,000/- each was
imposed on the remaining appellants. The Appellate
Tribunal for Foreign Exchange, in appeal, reduced the
penalty by 50%. The further appeals of the appellants
were dismissed in limine by the High Court.
1008
1.2. Delay in the pronouncement of the order by itself
would not constitute a ground for setting aside the order
that may otherwise be found legally valid and justified. A
careful examination of the adjudication by the Authority
and that of the Appellate Tribunal and the High Court
indicates that no illegality or irregularity has been
demonstrated. That apart delayed pronouncement of the
order by the Adjudicating Authority was not urged as a
ground of challenge before the Tribunal or the High
[2013] 1 S.C.R.
A
A Court. The hearing had been concluded by the
Adjudicating Authority in keeping with the requirement of
s.51 of FERA and s.30 of Adjudication Rules under FERA.
[para 6-7] [1015-B-C; 1016-B-D, F]
B
B
C
Bhagwandas Fatechand Daswani and Ors. v. HPA
International and Ors. 2000 (1) SCR 254 = 2000 (2) SCC 13,
Kanhaiyalal and Ors. v. Anupkumar and Ors. 2002 (4) Suppl.
C SCR 366 = (2003) 1 SCC 430 and Anil Rai v. State of
Bihar 2001 (1) Suppl. SCR 298 = (2001) 7 SCC 318 –
cited.
Dismissing the appeals, the Court
HELD: 1.1. Whether or not ‘B’ Ltd. is a paper
Company and whether or not it was controlled and
operated by the appellants is essentially a question of fact
to be determined on the basis of the material collected
in the course of the investigation. The Adjudicating
Authority and Tribunal have answered that question in
the affirmative taking into consideration the statements
made by the appellants as also the documents that were
recovered from their premises. There appears to be
sufficient evidence on record for the Adjudicating
Authority and the Tribunal to hold that the appellants were
indeed guilty of violating the provisions of FERA that
called for imposition of suitable penalty against them.
Therefore, there is no reason to interfere with the
concurrent findings of fact that ‘B’ Ltd. was a paper
company controlled by the appellants from India. [para
12 and 15] [1021-C-D; 1023-G-H; 1024-A-B]
SUPREME COURT REPORTS
D
E
F
G
H
Ram Bali v. State of U.P. 2004 (1) Suppl. SCR 195 =
(2004) 10 SCC 598 – relied on.
1.3. As regards the plea that retracted statements of
the
appellants were wrongly relied upon by the
D
Adjudicating Authority, suffice it to say that the
Adjudicating Authority has specifically held that the
statements were voluntary in nature and that the
subsequent retraction is a mere afterthought with a view
to escaping the consequences of the violations
E
committed by them. The Appellate Tribunal also held that
retracted statements could furnish a sound basis for
recording a finding against the party making the
statement. The Adjudicating Authority and the Appellate
Tribunal have both correctly appreciated the legal position
F and applied the same to the case at hand, while holding
that the statements were voluntary and, therefore, binding
upon the appellants. [para 9, 11] [1017-A-C; 1019-C-D]
K.T.M.S. Mohd. v. Union of India 1992 (2) SCR 879 =
(1992)
3 SCC 178, K.I. Pavunny v. Assistant Collector (HQ),
G
Central Excise Collectorate, Cochin 1997 (1) SCR 797 =
(1997) 3 SCC 721 – referred to.
H
Vinod Solanki v. Union of India & Anr. 2008
(17) SCR 1070 = (2008) 16 SCC 537 – held inapplicable
TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1009
DIRECTOR OF ENFORCEMENT
1.4. In the case at hand, the Adjudicating Authority
also placed reliance upon documents produced by two
officials of Indian High Commission in London, and the
appellants were permitted to inspect the same. The
production of the documents duly confronted to the
appellants was in the nature of production in terms of s.
139 of the Evidence Act, where the witness producing the
documents is not subjected to cross-examination. Such
being the case, the refusal of the Adjudicating Authority
to permit cross-examination of the witnesses producing
the documents cannot even on the principles of Evidence
Act be found fault with. At any rate, the disclosure of the
documents to the appellants and the opportunity given
to them to rebut and explain the same was a substantial
compliance with the principles of natural justice. That
being so, there was and could be no prejudice to the
appellants. [para 20] [1028-A-D]
Surjeet Singh Chhabra v. Union of India and Ors. 1996
(7) Suppl. SCR 818 = (1997) 1 SCC 508; M/s Kanungo &
Company v. Collector of Customs and Ors. (1973) 2 SCC
438- referred to
New India Assurance Company Ltd. v. Nusli Neville
Wadia and Anr. 2007 (13) SCR 598 = (2008) 3 SCC 279,
S.C. Girotra v. United 1995 Supp. (3) SCC 212, Lakshman
Exports Ltd. v. Collector of Central Excise (2005) 10 SCC 634,
and M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen
and Ors. 1972 (1) SCR 241 = (1971) 2 SCC 617 - cited
1.5. There is no reason much less a compelling one
to interfere with the quantum of penalty imposed upon
the appellants by the Tribunal. The Adjudicating Authority
had imposed a higher penalty. The Tribunal has already
given relief by reducing the same by 50%. Keeping in
view the nature of the violations and the means adopted
by the appellants to do that, there is no room for any
further leniency. [para 21] [1028-F]
1010
A
B
C
D
E
SUPREME COURT REPORTS
A
B
C
D
E
[2013] 1 S.C.R.
Case Law Reference:
2000 (1) SCR 254
cited
para 5
2002 (4) Suppl. SCR 366
cited
para 5
2001 (1) Suppl. SCR 298
cited
para 5
2004 (1) Suppl. SCR 195
relied on
para 6
1992 (2) SCR 879
referred to
para 11
1997 (1) SCR 797
referred to
para 11
2008 (17) SCR 1070
held inapplicable para 11
2007 (13) SCR 598
cited
para 16
1995 (3) Suppl. SCC 212
cited
para 16
2005 (10) SCC 634
cited
para 16
1972 (1) SCR 241
cited
para 16
1996 (7) Suppl. SCR 818
referred to
para 18
1973 (2) SCC 438
referred to
para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
1306-1309 of 2013.
F
F
From the Judgment & Order dated 14.03.2008 of the High
Court of Judicature of Bombay in FERA Appeal No. 8, 9, 10 &
11 of 2008.
Shyam Diwan, Tarun Gulati, Neil Hildreth, Shruti Sabharwal,
Nirman Sharma, Praveen Kumar for the Appellants.
G
G
P.P. Malhotra, ASG, Chetan Chawla, Priyanka Mathur, Anil
Katiyar, Shreekant N. Terdal for the Respondent.
The Judgment of the Court was delivered by
H
H
T.S. THAKUR, J. 1. Leave granted.
TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1011
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
2. These appeals arise out of a common judgment and A
order dated 14th March, 2008 passed by a Division Bench of
the High Court of Judicature at Bombay whereby the High Court
has partly allowed FERA Appeal Nos.8 to 11 of 2008 that
assailed the common order dated 28th November, 2007
passed by the Appellate Tribunal for Foreign Exchange, New B
Delhi and reduced the penalty imposed upon the appellants for
contravention of Sections 14 and 8(1) of the Foreign Exchange
Regulation Act, 1973 by 50%. The factual matrix in which the
adjudication order came to be passed by the Deputy Director,
Directorate of Enforcement, Mumbai and the appellate order C
passed by the Tribunal for Foreign Exchange, New Delhi has
been set out in the order passed by the Tribunal and the order
passed by the High Court of Bombay mentioned earlier. It is,
therefore, unnecessary to recount the facts over again except
to the extent it is absolutely necessary for disposal of these
D
appeals.
3. Appellant-Telestar Travels Private Ltd. carries on a travel
agency and specialises in booking of tickets for crew members
working on ships. Most of the shipping companies are based
abroad with their representatives located in Mumbai who would E
issue instructions to the appellant-company to arrange air
passage for the crew from Bombay and other places in India
to particular ports abroad. The company would then take steps
to have tickets issued on the basis of such instructions for
different destinations. The appellant’s case is that the travel F
agents in U.K. had of late started offering cheap fares for
seaman/crew travelling to join the ships. In order to benefit from
such low fare tickets the shipping companies are said to have
desired that the benefit of such low fare tickets be organized
for them by the appellant. In order to make that possible the G
appellant-company claims to have approached M/s Clyde
Travels Ltd. (CTL) in Glasgow (U.K.) for getting such cheap
seaman tickets. According to this arrangement, the CTL would
send a Pre-paid Ticket Advice (PTA) to the appellant in India
based on which the appellant would secure a ticket from the H
1012
SUPREME COURT REPORTS
[2013] 1 S.C.R.
airline concerned. The money for the tickets would then be
credited into the Swiss bank account of Bountiful Ltd., a
company registered in British Virgin Islands. Bountiful Ltd.
would out of money so received transfer funds to CTL towards
the price of the tickets apart from realising 3% of the ticket price
B towards commission payable to the appellant-company. The
appellant-company claims that the process of purchase of
tickets as aforementioned was a commercial arrangement that
was legally permissible and did not involve any violation of
FERA. The Directorate of Enforcement, Mumbai, did not,
C however, think so. According to the Directorate, Bountiful Ltd.
was a paper company that held Swiss bank account which was
in turn operated by a person named Mr. Shirish Shah, a
Chartered Accountant, operating from London on the
instructions of Mr. Rajesh Desai, appellant in SLP (C) No.15549
of 2008 who was none other than the son of Mr. Arun Desai,
D
Managing Director of Telestar Travels Pvt. Ltd. appellant in SLP
(C) No.15547 of 2008. The further case of the Directorate was
that documentary evidence seized from the office of M/s
Telestar and the residence premises of the Managing Director
in the course of investigation conducted under Section 37 of
E FERA unerringly revealed that Bountiful Ltd. was entirely a
holding of the appellant-Telestar Pvt. Ltd. and entirely controlled
in its operation and financial management by Mr. Arun N. Desai
and his two sons Mr. Sujeet A. Desai and Mr. Rajesh A. Desai,
appellants in these appeals. It was on the basis of the
F investigations conducted by the Directorate, the statements of
the promoters of Telestar Pvt. Ltd. recorded during the course
of such investigation and other material collected by the
Directorate, a notice was issued by the Directorate calling upon
them to show cause why the adjudication proceedings as
G contemplated under Section 51 of the FERA should not be filed
against them for the contravention pointed out in the show
cause notice. The show cause notice was followed by an
addendum by which the Directorate sought to place reliance
upon a report dated 15th January, 1997 received from the High
H Commission of India, at London and the revised list of
A
TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1013
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
documents enclosed and communicated to the appellants. The
appellants filed their replies in which they denied the allegations
that Bountiful Ltd. was a paper company or that the same was
being controlled from India by the appellants. By their letter
dated 23rd September, 1997 the appellants sought to crossexamine Mr. Livingstone of CLD and the Indian High
Commission officials in London who had met him. He also
sought to cross-examine Miss Anita Chotrani and Mr. Deepak
Raut upon whose depositions Directorate of Enforcement
sought to place reliance in support of its case. The Adjudicating
Authority eventually passed an order on 29th March, 2001
holding the appellants guilty of violation of provisions of
Sections 8 and 14 of FERA inasmuch the appellants had
received payments from various persons on account of tickets
booked by them for US $ 846116.14 and GB Pounds
156943.16 which were credited to the account No.10975 at
Geneva and which they failed to surrender to an authorised
dealer in foreign exchange in India within three months of
becoming the owner or holder thereof without the general
permission of the RBI as required under Section 14 of FERA.
The Adjudicating Authority has further held the appellants guilty
of transferring foreign exchange of GB Pounds 138671.40 and
US $ 672131.85 from the said Geneva Account No.10975 of
M/s Bountiful Ltd. to various persons during the period of
November, 1994 to July, 1995 without the previous general or
special permission of the RBI, thereby contravening Section
8(1) of FERA, 1973. The Adjudicating Authority on that basis
levied a penalty of Rs.90,00,000/- for contravening Section 14
and Rs.85,00,000/- for contravention of Section 8(1) upon M/s
Telestar Pvt. Ltd., Mumbai. The Authority further levied a
consolidated penalty of Rs.20,00,000/- each upon the remaining
appellants Mr. Arun N. Desai, Managing Director, Mr. Rajesh
Desai and Mr. Sujeet Desai, his sons.
1014
A
B
C
D
E
F
G
4. Aggrieved by the order passed by the Adjudicating
Authority, the appellants appealed to the Appellate Tribunal for
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A Foreign Exchange, New Delhi. The Tribunal, as already
mentioned, allowed the said appeals but only in part and to the
limited extent of reducing the penalty imposed by the
Adjudicating Authority by 50%. The Tribunal, upon reappraisal
of the entire material on record, affirmed the findings recorded
B by the Adjudicating Authority that the appellants had indeed
committed violation of Sections 8 and 14 of the FERA 1973
as noticed earlier. The further appeals before the High Court
of Judicature at Bombay by the appellants also failed and were
dismissed in limine by the High Court by order dated 14th
C March, 2008. Hence the present appeal.
5. Appearing for the appellants, Mr. Shyam Diwan,
learned senior counsel, made a three-fold submission in
support of the appeals. Firstly, he contended that the judgment
and order passed by the Adjudicating Authority was ex parte
D hence liable to be set aside. Elaborating that submission Mr.
Diwan argued that since the adjudication order had been
passed by the authority concerned nearly 3½ years after the
matter was finally argued before it, the requirement of affording
an opportunity of being heard to the appellants arising under
E Section 51 of FERA was not satisfied. It is submitted that the
appellants had been prejudiced on account of delayed
pronouncement of the adjudication order as the documents
available with them could not be placed before the said
authority after the hearing of the matter. He further contended
F that Rule 3 of the Adjudication Rules provided for a personal
hearing which was no doubt provided on the date the matter
was finally argued before the Adjudicating Authority but which
hearing ought to have been repeated as the pronouncement
of the order by the Authority had been delayed. Reliance in
G support of the submission was placed by Mr. Diwan upon the
decisions of this Court in Bhagwandas Fatechand Daswani
and Ors. v. HPA International and Ors. (2000) 2 SCC 13,
Kanhaiyalal and Ors. v. Anupkumar and Ors. (2003) 1 SCC
430 and Anil Rai v. State of Bihar (2001) 7 SCC 318.
H
TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1015
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
6. On behalf of respondent, it was per contra argued by
Mr. P.P. Malhotra, learned Additional Solicitor General, that the
order passed by the Adjudicating Authority was fully compliant
with the provisions of Section 51 read with Section 30 of the
Rules under FERA and could not be treated as an ex parte
order by any stretch of reasoning. He also contended that mere
delay in the pronouncement of adjudication order was not
enough to justify setting aside of the order if the same was
otherwise found to be legally valid and unacceptable. No
prejudice was, at any rate, caused to the appellants by the
delay, according to Mr. Malhotra, who placed reliance on the
decision of this Court in Ram Bali v. State of U.P. (2004) 10
SCC 598 to argue that delay in the pronouncement was not
itself sufficient to declare the order to be bad in law. This Court
has, according to Mr. Diwan, deprecated the practice of Courts
and Authorities delaying the pronouncement of orders and
matters that have been heard and reserved for such
pronouncements. There is no gainsaying that any Court or
Authority hearing the matter must within a reasonable time
frame pronounce the orders especially when any misgiving
arising out of inordinate delay which gave rise to unnecessary
apprehensions in the minds of litigants especially in the minds
of a party that has lost the matter at the hand of such long delay.
We can only express our respectful agreement with the
observations made by this Court in the decisions relied upon
by Mr. Diwan that have issued guidelines and set out time
frame considered reasonable for pronouncement of order by
Courts and Authorities. Even so, the question remains whether
delay by itself should constitute a ground for setting aside the
order that may otherwise be found legally valid and justified. Our
answer to that question is in the negative. The decision of this
Court in Ram Bali v. State of U.P. (2004) 10 SCC 598 is one
such case where the Court repelled a similar argument and
declared that delay was not a ground by itself that otherwise
specifically dealt with the matter in issue. The Court at best put
to caution requiring a careful and closer scrutiny of the order
that was pronounced after undue delay but if upon such scrutiny
1016
A
B
C
C
D
D
E
E
F
F
H
[2013] 1 S.C.R.
A also the order is not found to be wrong in any way it may decline
to set aside the same.
B
G
SUPREME COURT REPORTS
7. We have in the instant case heard the matter at
considerable length for a careful examination of the adjudication
by the Authority and that of the Appellate Tribunal and the High
Court to examine whether it suffers from any illegality or material
irregularity causing prejudice to the appellants. We are of the
view that no such illegality or irregularity has been
demonstrated. That apart delayed pronouncement of the order
by the Adjudicating Authority was not urged as a ground of
challenge before the Tribunal or the High Court both of whom
have remained silent on this aspect. Even on the question of
prejudice we find the contention of Mr. Diwan to be more
imaginary than real. The argument regarding prejudice is
founded on the plea that the appellants could not place some
of the documents which they have now placed before this Court
for consideration. It is further admitted that no application for
permission to produce these documents was filed by them
before the Adjudicating Authority no matter they could have done
so if they really indeed needed to place reliance on such
documents. Mr. Malhotra was, in our view, justified in contending
that the hearing had been concluded by the Adjudicating
Authority in keeping with the requirement of Section 51 and
Rule 3 of the Adjudication Rules under FERA. The first limb of
the contention urged by Mr. Diwan, therefore, fails and is hereby
rejected.
8. It was next argued by Mr. Diwan, that the Adjudicating
Authority had placed reliance upon the retracted statements of
the appellants while holding that Bountiful Ltd. was a paper
company and that its financial control lay in their hands, so that
G
receipt and appropriation of the foreign exchange by that
device was a clear violation of the provisions of FERA.
9. A reading of the order passed by the Adjudicating
Authority would show that the appellants had in their responses
H to the show cause notice and the addendum to the same
TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1017
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
specifically raised a contention that the statements made by
them were not voluntary and could not, therefore, be relied upon.
That contention was not only noticed by the Adjudicating
Authority but specifically dealt with and rejected holding that the
statement was voluntary in nature and that the subsequent
retraction is a mere after thought with a view to escaping the
consequences of the violations committed by them. The
Adjudicating Authority, we are more than satisfied, was aware
of the requirement of examining the voluntary nature of the
statements being relied upon by it. It has accordingly examined
that aspect and given cogent reasons for holding that the
statements were indeed voluntary and incriminating both. The
Adjudicating Authority has observed:
“On going through the records of the case, I find that the
statements dated 24.8.95, 25.8.95 and 6.2.96 of Shri
Arun N. Desai, the Noticee No.1 and the statements
dated 24/25.8.95 of Rajesh N. Desai and Sujeet Desai,
the Noticee Nos. 2 & 3 were all given by the respective
notices in their own handwriting and in the language
known to them. Shri Arun Desai, in his statements, had
explained in detail the functioning of M/s Telestar
Travels, the Travel Agency, mainly engaged in booking
of domestic and international air tickets for crew members
joining foreign ships; the need for entering into an
agreement with agents abroad; the mode of payments
received ant eh commission/profit earned on the tickets
booked by them through the overseas shipping
companies and also how their commission was being
remitted either by draft or telegraphic transfer into their
account No.82886 in Bank of Baroda, Churchgate
Branch etc. I thus find that the statemtns of the notice I
contain such inner and minute details, which could have
been given out of his personal knowledge and could not
have been invented by the officers who recorded the said
statements. Moreover, the statement of the notice No.1
have been confirmed by the statements of the other two
1018
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
A
B
B
C
C
D
10. In the appeal filed by the appellants before the FERA
Appellate Tribunal also a contention as to the voluntary nature
D of the statements made by the appellants was urged on their
behalf but rejected by the Tribunal in the following words:
E
E
F
F
G
G
H
H
notices S/Shri Rajesh and Sujeet Desai, in their
respective statements given before the Enforcement
Officers. Even otherwise there is nothing on record that
might cast the slightest doubt on the voluntariness of the
statements in question. I am, therefore, of the view that
the statements in question were given by the respective
three notices voluntarily in explanation of the plethora of
documents seized from the business/residential
premises of the notices and contain those details which
they wished to state. The retraction subsequently filed by
the notices S/Shri Rajesh Desai and Sujeet Desai are
merely an afterthought to escape from the clutches of law
and I reject them in toto.”
“It is argued that the statements given by Shri Arun Desai,
Rajesh Desai and Sujeet Desai were not the voluntary
ones which were dictated by the Enforcement Officers
and were obtained under threats and coercion which were
subsequently retracted and that there was no
corroborative material to support them. But we find no
force in these arguments because the appellants, in their
statements, had explained in detail the functioning of M/
s. Telstar Travels, which was engaged in booking of
domestic and international air tickets for crew members
joining foreign ships, the need for entering into an
agreement with agents abroad, the mode of payments
received and the commission earned on the tickets
booked by them through the Over Shipping Companies
and how their commission was remitted through Banking
channel. Moreover, they were written in their own
handwriting and in the language known to them. The
statements contained such inner and minute details
TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1019
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
which could have been given out of their personal
knowledge and could not have been invented by the
officers of the Department.”
11. The Tribunal has relying upon the decision of this Court
in K.T.M.S. Mohd. v. Union of India (1992) 3 SCC 178, K.I.
Pavunny v. Assistant Collector (HQ), Central Excise
Collectorate, Cochin (1997) 3 SCC 721 held that retracted
statements could furnish a sound basis for recording a finding
against the party making the statement. There is, in that view,
no gainsaying that the Adjudicating Authority and the Appellate
Tribunal have both correctly appreciated the legal position and
applied the same to the case at hand, while holding that the
statements were voluntary and, therefore, binding upon the
appellants. Decision of this Court in Vinod Solanki v. Union
of India & Anr. (2008) 16 SCC 537 relied upon by Mr. Diwan
does not lend any help to the appellants. The decision is an
authority for the proposition that a person accused of
commission of an offence is not expected to prove to the hilt
that confession had been obtained from him by an inducement,
threat or promise by a person in authority. The burden is on the
authority/prosecution to show that the statement sought to be
relied upon was voluntary and that the Court while examining
the voluntariness of the statement is required to consider the
attending circumstances and all other relevant facts. The
decision does not hold that even when a statement is founded
upon consideration of the relevant facts and circumstances and
also found to be voluntary, it cannot be relied upon because
the same was retracted. We may usefully refer to the legal
position stated in the following paragraph by this Court in
K.T.M.S. Mohd. & Anr. (supra):
“34. We think it is not necessary to recapitulate and recite
all the decisions on this legal aspect. But suffice to say that
the core of all the decisions of this Court is to the effect
that the voluntary nature of any statement made either
before the Custom Authorities or the officers of
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Enforcement under the relevant provisions of the
respective Acts is a sine quo non to act on it for any
purpose and if the statement appears to have been
obtained by any inducement, threat, coercion or by any
improper means that statement must be rejected brevi
manu. At the same time, it is to be noted that merely
because a statement is retracted, it cannot be recorded
as involuntary or unlawfully obtained. It is only for the maker
of the statement who alleges inducement, threat, promise
etc. to establish that such improper means has been
adopted. However, even if the maker of the statement fails
to establish his allegations of inducement, threat etc.
against the officer who recorded the statement, the
authority while acting on the inculpatory statement of the
maker is not completely relieved of his obligations in at
least subjectively applying its mind to the subsequent
retraction to hold that the inculpatory statement was not
extorted. It thus boils down that the authority or any Court
intending to act upon the inculpatory statement as a
voluntary one should apply its mind to the retraction and
reject the same in writing. It is only on this principle of law,
this Court in several decisions has ruled that even in
passing a detention order on the basis of an inculpatory
statement of a detenu who has violated the provisions of
the FERA or the Customs Act etc. the detaining authority
should consider the subsequent retraction and record its
opinion before accepting the inculpatory statement lest the
order will be vitiated...”
(emphasis supplied)
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12. That brings us to the submission of Mr. Diwan that the
G arrangement arrived at between the Appellant Company, on the
one hand, and Clyde Travels Ltd. and Bountiful Ltd., on the
other, was commercial in nature which the Adjudicating
Authority and the Tribunal had failed to appreciate in its true
and correct perspective. There was, according to Mr. Diwan,
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TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1021
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
no real basis for the Adjudicating Authority and the Tribunal to
hold that Bountiful was a paper company and that it was being
controlled by the Desais from India. Mr. Diwan made a
strenuous attempt to persuade us to reverse the findings of fact
recorded by the Adjudicating Authority and the Tribunal on this
aspect. We regret our inability to do so. Whether or not
Bountiful Ltd. is a paper Company and whether or not it was
controlled and operated by the appellants is essentially a
question of fact to be determined on the basis of the material
collected in the course of the investigation. The Adjudicating
Authority and Tribunal have answered that question in the
affirmative taking into consideration the statements made by
the appellants as also the documents that were recovered from
their premises. All these documents and incriminatory
circumstances have been discussed in the following passage
by the Adjudicating Authority:
“...A perusal of the records indicate that various
incriminating documents together with the Indian
currencies were seized from the office premises of M/s
Telstar Travels and also from the residence of Shri Arun
Desai, the Managing Director of the said company. All
the three noticees S/Shri Arun Desai and his two sons
Rajesh and Sujeet Desai, have given their statements
before the Enforcement Officer, in explanation of the said
seized documents. It is also noticed that the seizure of
documents and currencies had not been disputed by the
notices at any point of time. Shri Rajesh Desai, son of
the said Shri Arun N. Desai and one of the noticees in
the impugned SCN, while explaining page No.18 of the
bunch of documents marked ‘G’, had clearly admitted that
it was the message from Shri Sirish Shah from London
informing that US $ 33884 has been credited on 14.11.94
to the account of Bountiful. Similarly page Nos.30 & 34
of file marked ‘I’, contain instructions to transfer certain
amounts to the account of Clyde Travels Ltd. Glasgow.
When Shri Rajesh Desai was questioned as to how could
1022
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13. Dealing with the invoices issued by Bountiful Ltd. to
M/s. Ocean Air Ltd. and M/s Scot Travel Ltd., Hong Kong, the
H Adjudicating Authority held that appellant Telestar Pvt. Ltd. had
issue such instructions in respect of the account of
Bountiful Ltd., he clearly explained in his statement dated
24.8.95 that the account No.10975 of Bountiful at Geneva
was an account of a paper company held by him for the
sole purpose of receiving and making payments in
respect of seamen airline tickets which were obtained at
the very cheap rates from M/s Clyde Travels, Glasgow,
with whom M/s Telstar had a tie up since August 1994;
that Shri Sirish Shah was a Chartered Accountant in
London, who was known to both M/s. Clyde Travels and
Telstar; that the said Shri Sirish Shah was used by him
for giving instructions to the bank for operating the
account of Bountiful Ltd. At Switzerland that the last
balance for the said account of Bountiful was US$
98761.70. Shri Rajesh Desai further explained the page
Nos. at 111 to 125 of file marked ‘E’ seized from the office
of M/s. Telstar Travels. P. Ltd., in his statement dated
24.8.95, admitting the same to be the statement of
account of Bountiful Ltd. with Banque De Financement,
Geneva, which showed credits of amounts remitted by
various overseas shipping companies against PTA
tickets purchased for their crew; that the said credits
represented amounts transferred from the bank accounts
of their overseas shipping companies; that the debits
represented the amounts transferred to the Bank of
Scotland Glasgow which is the account of M/s. Clyde
Travels Ltd. in Glasgow; that he was the person giving
instructions to Shri Sirish Shah, Chartered Accountant of
P.S.J. Alexandar & Co, London to transfer funds from the
account in Geneva of M/s. Bountiful to various places
which included transfer of funds to M/s Clyde Travels Ltd,
Glasgow which forms a major portion of transfer for PTA
tickets.”
TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1023
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
issued directions that the amount payable be deposited to the
credit of M/s Bountiful Ltd. The Adjudicating Authority observed:
“… I also find from the records, certain invoices of
Bountiful ltd. Drawn on M/s. Ocean Air Ltd. and on M/s.
Scot Travel Ltd, Hong Kong, which were produced by
Miss Anita Chotrani Travel Co-ordinator of M/s. Denklau
Marine Services, Mumbai, which contain directions of M/
s Telstar to credit the amount of the bill to the A/c
No.10975 of M/s Bountiful Ltd, at Geneva. A scrutiny of
the bills produced by the said Miss Anita Chotrani, given
by Telstar, it was found that several air tickets of Air India
booked by Telstar were also billed in these Bountiful
invoices and payment of these Air India tickets have
been directed to the Geneva Account. Moreover the bills
do not bear any signatures nor the identity of the person
allegedly managing the billing on behalf of Bountiful Ltd.”
14. The Adjudicating Authority has also noticed and relied
upon incriminating circumstances like instructions issued by
appellant Telestar to Bountiful to remit an amount of
Rs.4,74,033/- to M/s Aarnav Shipping Company towards
repairs of MV Rizcun Trader, a ship owned by one of their
principals M/s United Ship Management, Hongkong. Similarly
a payment of US$ 12500/- made from Bountiful Account to
Mustaq Ali Najumden is also evidenced and was made on the
instructions of appellant-Shri Rajesh Desai, which the latter
explained to be kickbacks paid to overseas shipping company
for giving ticketing business to Telestar.
15. Suffice it to say that there may be sufficient evidence
on record for the Adjudicating Authority and the Tribunal to hold
that the appellants were indeed guilty of violating the provisions
of FERA that called for imposition of suitable penalty against
them. It was not the case of the appellants that the findings were
unsupported by any evidence nor was it their case that the
statements made by the appellants were un-corroborated by
any independent evidence documentary or otherwise. In the
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A circumstances, therefore, we see no reason to interfere with the
concurrent findings of fact on the question whether Bountiful was
or was not a paper company controlled by the appellants from
India.
16. That brings us to the third limb of attack mounted by
B the appellants against the impugned orders. It was argued by
Mr. Diwan that while holding that Bountiful Ltd. was a paper
Company and was being controlled and operated from India
by the appellants through Shri Sirish Shah, the Adjudicating
Authority had relied upon the statements of Miss Anita Chotrani
C and Mr. Deepak Raut, and a communication received from the
Indian High Commission in London. These statements and the
report were, according to Mr. Diwan, inadmissible in evidence
as the appellant’s request for an opportunity to cross examine
these witness had been unfairly declined, thereby violating the
D principles of natural justice that must be complied with no matter
the strict rules of Evidence Act had been excluded from its
application. Inasmuch as evidence that was inadmissible had
been relied upon, the order passed by the Adjudicating
Authority and the Tribunal were vitiated. Reliance in support was
E placed by Mr. Diwan upon the decisions of this Court in New
India Assurance Company Ltd. v. Nusli Neville Wadia and
Anr. (2008) 3 SCC 279, S.C. Girotra v. United 1995 Supp. (3)
SCC 212, Lakshman Exports Ltd. v. Collector of Central
Excise (2005) 10 SCC 634, and M/s Bareilly Electricity Supply
F Co. Ltd. v. The Workmen and Ors. (1971) 2 SCC 617.
17. Mr. Malhotra, on the other hand, argued that the right
of cross-examination was available to a party under the
Evidence Act which had no application to adjudication
proceedings under FERA. He relied upon the provisions of
G Section 51 of the Act and Adjudication Rules framed thereunder
in this regard. He also placed reliance upon a decision of this
Court in Surjeet Singh Chhabra v. Union of India and Ors.
(1997) 1 SCC 508 to argue that cross-examination was
unnecessary in certain circumstances such as the one at hand
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TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1025
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
where all material facts were admitted by appellants in their
statements before the concerned authority.
18. There is, in our opinion, no merit even in that
submission of the learned counsel. It is evident from Rule 3 of
the Adjudication Rules framed under Section 79 of the FERA
that the rules of procedure do not apply to adjudicating
proceedings. That does not, however, mean that in a given
situation, cross examination may not be permitted to test the
veracity of a deposition sought to be issued against a party
against whom action is proposed to be taken. It is only when a
deposition goes through the fire of cross-examination that a
Court or Statutory Authority may be able to determine and
assess its probative value. Using a deposition that is not so
tested, may therefore amount to using evidence, which the party
concerned has had no opportunity to question. Such refusal
may in turn amount to violation of the rule of a fair hearing and
opportunity implicit in any adjudicatory process, affecting the
right of the citizen. The question, however, is whether failure to
permit the party to cross examine has resulted in any prejudice
so as to call for reversal of the orders and a de novo enquiry
into the matter. The answer to that question would depend upon
the facts and circumstances of each case. For instance, a
similar plea raised in Surjeet Singh Chhabra v. Union of India
and Ors. (1997) 1 SCC 508 before this Court did not cut much
ice, as this Court felt that cross examination of the witness would
make no material difference in the facts and circumstances of
that case. The Court observed:
“3. It is true that the petitioner had confessed that he
purchased the gold and had brought it. He admitted that
he purchased the gold and converted it as a kara. In this
situation, bringing the gold without permission of the
authority is in contravention of the Customs Duty Act and
also FERA. When the petitioner seeks for crossexamination of the witnesses who have said that the
recovery was made from the petitioner, necessarily an
opportunity requires to be given for the cross-
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examination of the witnesses as regards the place at
which recovery was made. Since the dispute concerns the
confiscation of the jewellery, whether at conveyor belt or
at the green channel, perhaps the witnesses were
required to be called. But in view of confession made by
him, it binds him and, therefore, in the facts and
circumstances of this case the failure to give him the
opportunity to cross-examine the witnesses is not
violative of principle of natural justice. It is contended that
the petitioner had retracted within six days from the
confession. Therefore, he is entitled to cross-examine the
panch witnesses before the authority takes a decision on
proof of the offence. We find no force in this contention.
The customs officials are not police officers. The
confession, though retracted, is an admission and binds
the petitioner. So there is no need to call panch witnesses
for examination and cross-examination by the petitioner.”
19. We may also refer to the decision of this Court in M/s
Kanungo & Company v. Collector of Customs and Ors.
(1973) 2 SCC 438. The appellant in that case was carrying on
E business as a dealer, importer and repairer of watches in
Calcutta. In the course of a search conducted by Customs
Authorities on the appellant’s premises, 280 wrist watches of
foreign make were confiscated. When asked to show cause
against the seizure of these wrist watches, the appellants
F produced vouchers to prove that the watches had been lawfully
purchased by them between 1956 and 1957. However, upon
certain enquiries, the Customs Authorities found the vouchers
produced to be false and fictitious. The results of these
enquiries were made known to the appellant, after which they
were given a personal hearing before the adjudicating officer,
G
the Additional Collector of Customs. Citing that the appellant
made no attempt in the personal hearing to substantiate their
claim of lawful importation, the Additional Collector passed an
order confiscating the watches under Section 167(8), Sea
Customs Act, read with Section 3(2) of the Imports and Exports
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TELESTAR TRAVELS PVT. LTD. & ORS. v. SPECIAL 1027
DIRECTOR OF ENFORCEMENT [T.S. THAKUR, J.]
(Control) Act, 1947. The writ petition filed by the appellant to
set aside the said order was allowed by a Single Judge of the
High Court on the ground that the burden of proof on the
Customs Authorities had not been discharged by them. The
Division Bench of the High Court reversed this order on appeal
stating that the burden of proving lawful importation had shifted
upon the firm after the Customs Authorities had informed them
of the results of their enquiries. In appeal before this Court, one
of the four arguments advanced on behalf of the appellant was
that the adjudicating officer had breached the principles of
natural justice by denying them the opportunity to crossexamine the persons from whom enquiries were made by the
Customs Authorities. The Supreme Court rejected this
argument stating as follows:
“12. We may first deal with the question of breach of
natural justice. On the material on record, in our opinion,
there has been no such breach. In the show-cause notice
issued on August 21, 1961, all the material on which the
Customs Authorities have relied was set out and it was
then for the appellant to give a suitable explanation. The
complaint of the appellant now is that all the persons from
whom enquiries were alleged to have been made by the
authorities should have been produced to enable it to
cross-examine them. In our-opinion, the principles of
natural justice do not require that in matters like this the
persons who have given information should be examined
in the presence of the appellant or should be allowed to
be cross-examined by them on the statements made
before the Customs Authorities. Accordingly we hold that
there is no force in the third contention of the appellant.”
20. Coming to the case at hand, the Adjudicating Authority
has mainly relied upon the statements of the appellants and the
documents seized in the course of the search of their premises.
But, there is no dispute that apart from what was seized from
the business premises of the appellants the Adjudicating
Authority also placed reliance upon documents produced by
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A Miss Anita Chotrani and Mr. Raut. These documents were, it
is admitted disclosed to the appellants who were permitted to
inspect the same. The production of the documents duly
confronted to the appellants was in the nature of production in
terms of Section 139 of the Evidence Act, where the witness
B producing the documents is not subjected to cross examination.
Such being the case, the refusal of the Adjudicating Authority
to permit cross examination of the witnesses producing the
documents cannot even on the principles of Evidence Act be
found fault with. At any rate, the disclosure of the documents to
C the appellants and the opportunity given to them to rebut and
explain the same was a substantial compliance with the
principles of natural justice. That being so, there was and could
be no prejudice to the appellants nor was any demonstrated
by the appellants before us or before the Courts below. The
third limb of the case of the appellants also in that view fails
D
and is rejected.
21. Mr. Diwan lastly argued that the penalty imposed was
disproportionate to the nature of the violation and that this Court
could at least, interfere to that extent. We do not see any reason
E much less a compelling one to interfere with the quantum of
penalty imposed upon the appellants by the Tribunal. The
Adjudicating Authority had, as noticed earlier, imposed a
higher penalty. The Tribunal has already given relief by reducing
the same by 50%. Keeping in view the nature of the violations
F and the means adopted by the respondent to do that, we see
no room for any further leniency.
22. In the result, these appeals fail and are, hereby,
dismissed with costs assessed at Rs.50,000/- in each appeal.
Cost to be deposited within two months with the SCBA
G Lawyers’ Welfare Fund.
R.P.
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SUPREME COURT REPORTS
Appeals dismissed.
1030
[2013] 1 S.C.R. 1029
RAJENDRA YADAV
v.
STATE OF M.P. & OTHERS
(Civil Appeal No. 1334 of 2013)
FEBRUARY 13, 2013
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[K.S. RADHAKRISHNAN & DIPAK MISRA, JJ.]
Service Law:
Disciplinary proceedings – Equality in punishment –
Held: Disciplinary Authority cannot impose punishment which
is disproportionate, i.e., lesser punishment for serious
offences and stringent punishment for lesser offences –
Therefore, punishment of dismissal from service imposed on
appellant is set aside and it is ordered that he be reinstated
in service forthwith from the date on which the co-delinquent
was re-instated, and with the same consequent benefits –
Doctrine of equality.
A departmental inquiry was conducted against the
appellant, a Head Constable of Police, and two others
namely, an ASI and another Head Constable, for
demanding and accepting illegal gratification for
registering a police complaint. The money was proved to
have been paid to the co-delinquent (a Constable) and as
far as the appellant was concerned, with regard to
receiving money, his participation and tacit approval were
proved. The ASI was demoted for three years. The
appellant and the other Head Constable were dismissed
from service and the co-delinquent (the Constable) was
awarded the punishment of reduction of increment with
cumulative effect for one year. The departmental appeal,
the writ petition and the writ appeal filed by the appellant
having been dismissed, he filed the appeal.
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Allowing the appeal, the Court
HELD: 1. The doctrine of equality applies to all who
are equally placed; even among persons who are found
guilty. Parity among co-delinquents has also to be
maintained when punishment is being imposed. The
Disciplinary Authority cannot impose punishment which
is disproportionate, i.e., lesser punishment for serious
offences and stringent punishment for lesser offences.
In the instant case, the charge levelled against the codelinquent was more serious than the one against the
appellant. It was the co-delinquent who had demanded
and received the money; he was inflicted comparatively
a lighter punishment. At the same time, the appellant, who
had played a passive role, was inflicted with a more
serious punishment of dismissal from service, which
cannot be sustained. Therefore, the punishment of
dismissal from service imposed on the appellant is set
aside and it is ordered that he be reinstated in service
forthwith from the date on which the co-delinquent was
re-instated and be given all consequent benefits as was
given to the said co-delinquent. [para 11-12 and 14] [1034E-F, G-H; 1035-A-B; 1036-A-B]
Anand Regional Coop. Oil Seedsgrowers’ Union Ltd. V.
Shaileshkumr Harshadbhai Shah 2006 (4) Suppl. SCR 370
= (2006) 6 SCC 548; Director General of Police and Others
v. G. Dasayan (1998) 2 SCC 407 – relied on.
Case Law Reference:
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2006 (4) Suppl. SCR 370
relied on
para 9
(1998) 2 SCC 407
relied on
para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1334 of 2013.
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From the Judgment & Order dated 06.09.2011 of the High
RAJENDRA YADAV v. STATE OF M.P.
1031
Court of Madhya Pradesh at Jabalpur in W.A. No. 1135 of
2007.
1032
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Rakesh Khanna, Udit Kumar, Bankey Bihari for the
Appellant.
Arjun Garg, Mishra Saurabh, B.S. Banthia for the
Respondents.
B
2. Appellant, a Police Constable, while he was working in
the police station Rahatgarh, District Sagar along with A.S.I.
Lakhan Tiwari and Head Constable Jagdish Prasad Tiwari
stated to have received an amount of Rs.3,000 for not
implicating certain persons involved in Crime No. 4 of 2002
charged under Sections 341, 294, 323, 506(B), 34 IPC. A
complaint to that effect was filed by one Kundan Rajak, a
resident of Village Sothia, PS Rahatgarh. Acting on that
complaint, the appellant was charge-sheeted, along with two
others, vide proceedings dated 6.5.2002 by the Superintendant
of Police, Sagar. The following are the charges levelled against
the appellant:
(1)
(2)
He demonstrated gross negligence and lack of
interest in discharge of his duty by not implicating
all the persons involved in the crime.
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He demonstrated misconduct by accepting
Rs.3,000 from the complainant Kundan Rajak for
lodging a report in the police station.
4. A detailed inquiry was conducted through the Additional
Superintendant of Police, Sagar against the appellant and other
“Against the delinquent No. 2, H.C. 1104 Rajendra
Prasad, one of the charges imputed could not be proved
for want of evidence. During the course of departmental
inquiry, the inquiry has noted that the charge No. 2 was
also not proved from the statement of prosecution witness
and documents of the prosecution but one cannot deny the
participation of the delinquent and his tacit approval.”
5. The Superintendant of Police, Sagar, however, vide his
proceedings dated 26.3.2004, disagreed with the remarks of
the Inquiry Officer and held that the charge No. 2 as against
the appellant was found to be proved. Consequently, a
supplementary charge-sheet was also given to the appellant.
E Later, a final order was passed by the Deputy Inspector General
of Police, Sagar stating as follows:
F
3. Appellant filed a detailed reply to the charge-sheet by
his letter dated NIL and denied all the allegations.
[2013] 1 S.C.R.
A two persons – A.S.I. Lakhan Tiwari and H.C. Jagdish Prasad
Yadav. During the course of the inquiry, the charge against
Lakhan Tiwari was found not proved, but his role was found to
be doubtful. So far as appellant Rajendra Prasad Yadav is
concerned, it was held that one of the charges could not be
B proved for want of evidence. The inquiry report dated 8.9.2004,
so far as the appellant is concerned, states as follows:
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Leave granted.
SUPREME COURT REPORTS
“With respect to the delinquent HC No. 1104 Rajendra
Yadav, the Inquiry Officer has stated vide his said letter that
the delinquent HC was present in the police station during
the report of the Crime No. 4/02. As per the evidence, the
money was demanded by Ct. Arjun Pathak. The report has
been recorded by HC 1104 Rajendra Yadav whereas
Rs.3,000/- was paid to Const. Arjun Pathak. Therefore,
with regard to receiving money, the participation of HC
Rajendra Yadav and his tacit approval are proved with
respect to the charge No. 2. At the same time, he could
not exercise his control over his subordinate. The money
was demanded by Arjun Pathak and upon receipt of the
money by Arjun Pathak, HC 1104 Rajendra Yadav lodged
the report. Therefore, I am in disagreement with the view
RAJENDRA YADAV v. STATE OF M.P.
[K.S. RADHAKRISHNAN, J.]
1033
of the Inquiry Officer given in the inquiry report of the
department inquiry that the charge is not proved against
the delinquent HC Rajendra Prasad Yadav. As per the
remark of the Inquiry Officer, the above mentioned charge
No. 2 imputed against HC No. 1104 Rajendra Prasad is
found to be proved.”
6. On the basis of the above finding, Lakhan Tiwari was
demoted for three years from the post of A.S.I. to Head
Constable. But the appellant and Jagdish Prasad Tiwari were
dismissed from service.
1034
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9. Mr. Rakesh Khanna, learned counsel appearing for the
appellant, submitted that since both the charges levelled against
the appellant were not proved fully, the respondent Department
was not justified in dismissing him from the service, which is
grossly disproportionate to the gravity of the offence. Further,
it was pointed out that there is nothing on the record to show
that the appellant had demanded or accepted the alleged sum
of Rs.3,000 and it was proved in the inquiry that it was
Constable Arjun Pathak who had demanded the above
mentioned amount and he was, even though, inflicted with the
punishment of compulsory retirement was, later, reinstated by
imposing punishment of reduction of increment with cumulative
effect for one year. The inquiry has clearly established that it
was Arjun Pathak who had demanded and accepted the illegal
gratification from the complainant, but he has been given a
[2013] 1 S.C.R.
A lighter punishment while the appellant was imposed a harsher
punishment, which is clearly arbitrary and discriminatory.
Learned counsel placed considerable reliance on the judgment
of this Court in Anand Regional Coop. Oil Seedsgrowers’
Union Ltd. V. Shaileshkumr Harshadbhai Shah (2006) 6 SCC
B 548 and claimed parity, if not fully exonerated.
C
10. Shri Arjun Garg, learned counsel appearing for the
respondent State, submitted that there is no illegality in the
views expressed by the learned single Judge and the Division
Bench calling for any interference. Further, it was pointed out
C that since the appellant, being a member of a disciplined force,
should not have involved in such an incident and his tacit
approval could not be brushed aside because it had taken place
in his presence.
D
D
7. Aggrieved by the same, appellant preferred an appeal
before the Inspector General of Police (appellate authority), who
dismissed the appeal vide his order dated 9.12.2004.
8. Appellant then filed a Writ Petition No. 10696 of 2007
before the High Court of Madhya Pradesh, Jabalpur Bench,
which was dismissed by the learned single Judge by his order
dated 3.5.2007, against which a Writ Appeal No. 11 of 2007
was also preferred, which was also dismissed by the Division
Bench vide its impugned judgment dated 6.9.2011.
SUPREME COURT REPORTS
E
F
G
H
11. We have gone through the inquiry report placed before
us in respect of the appellant as well as Constable Arjun Pathak.
The inquiry clearly reveals the role of Arjun Pathak. It was Arjun
Pathak who had demanded and received the money, though
the tacit approval of the appellant was proved in the inquiry. The
E charge levelled against Arjun Pathak was more serious than
the one charged against the appellant. Both appellants and
other two persons as well as Arjun Pathak were involved in the
same incident. After having found that Arjun Pathak had a more
serious role and, in fact, it was he who had demanded and
F received the money, he was inflicted comparatively a lighter
punishment. At the same time, appellant who had played a
passive role was inflicted with a more serious punishment of
dismissal from service which, in our view, cannot be sustained.
12. The Doctrine of Equality applies to all who are equally
G placed; even among persons who are found guilty. The persons
who have been found guilty can also claim equality of treatment,
if they can establish discrimination while imposing punishment
when all of them are involved in the same incident. Parity among
co-delinquents has also to be maintained when punishment is
H being imposed. Punishment should not be disproportionate
RAJENDRA YADAV v. STATE OF M.P.
[K.S. RADHAKRISHNAN, J.]
1035
while comparing the involvement of co-delinquents who are
parties to the same transaction or incident. The Disciplinary
Authority cannot impose punishment which is disproportionate,
i.e., lesser punishment for serious offences and stringent
punishment for lesser offences.
13. The principle stated above is seen applied in few
judgments of this Court. The earliest one is Director General
of Police and Others v. G. Dasayan (1998) 2 SCC 407,
wherein one Dasayan, a Police Constable, along with two other
constables and one Head Constable were charged for the same
acts of misconduct. The Disciplinary Authority exonerated two
other constables, but imposed the punishment of dismissal
from service on Dasayan and that of compulsory retirement on
Head Constable. This Court, in order to meet the ends of
justice, substituted the order of compulsory retirement in place
of the order of dismissal from service on Dasayan, applying the
principle of parity in punishment among co-delinquents. This
Court held that it may, otherwise, violate Article 14 of the
Constitution of India. In Shaileshkumar Harshadbhai Shah
case (supra), the workman was dismissed from service for
proved misconduct. However, few other workmen, against
whom there were identical allegations, were allowed to avail
of the benefit of voluntary retirement scheme. In such
circumstances, this Court directed that the workman also be
treated on the same footing and be given the benefit of
voluntary retirement from service from the month on which the
others were given the benefit.
14. We are of the view the principle laid down in the above
mentioned judgments also would apply to the facts of the
present case. We have already indicated that the action of the
Disciplinary Authority imposing a comparatively lighter
punishment to the co-delinquent Arjun Pathak and at the same
time, harsher punishment to the appellant cannot be permitted
in law, since they were all involved in the same incident.
Consequently, we are inclined to allow the appeal by setting
1036
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B
D
E
F
G
H
[2013] 1 S.C.R.
A aside the punishment of dismissal from service imposed on the
appellant and order that he be reinstated in service forthwith.
Appellant is, therefore, to be re-instated from the date on which
Arjun Pathak was re-instated and be given all consequent
benefits as was given to Arjun Pathak. Ordered accordingly.
B However, there will be no order as to costs.
R.P.
C
SUPREME COURT REPORTS
Appeal allowed.
1038
[2013] 1 S.C.R. 1037
SURESH KUMAR BHIKAMCHAND JAIN
v.
STATE OF MAHARASHTRA & ANR.
(Special Leave Petition (Crl.) No.147 of 2013)
FEBRUARY 13, 2013
A
B
[ALTAMAS KABIR, CJI, J. CHELAMESWAR AND
VIKRAMAJIT SEN, JJ.
s. 167 (2) – Statutory bail – Charge-sheet filed within the
stipulated period, but cognizance not taken as sanction for
prosecution had not been obtained – Held: Grant of sanction
is nowhere contemplated u/s 167 – Once a charge-sheet is
filed within the stipulated time, question of grant of default bail
or statutory bail does not arise – Filing of charge-sheet is
sufficient compliance with provisions of s.167(2)(a)(ii) in the
instant case – Merely because sanction had not been
obtained to prosecute the accused and to proceed to the stage
of s.309 Cr.P.C., it cannot be said that the accused is entitled
to grant of statutory bail, as envisaged in s.167.
During investigation of a case of misappropriation of
amount meant for development of slums, the petitioner,
who was an MLA and was functioning as the Minster of
Housing and Slum Area Development, at the relevant
time, was arrested on 11.3.2012. The case against him
pertained to offences punishable u/ss 120-B, 409, 411,
406, 408, 465, 466, 468, 471, 177, 109 read with s.34 IPC
and also u/ss 13(1)(c), 13(1) (d) and 13(2) of the Prevention
of Corruption Act, 1988. The first charge-sheet against
four other accused was filed on 25.4.2012 and the
supplementary charge-sheet in which the petitioner was
named was filed on 1.6.2012.
1037
D
E
F
G
H
[2013] 1 S.C.R.
A
In the instant petition for special leave to appeal, the
issue for consideration before the Court was regarding
the right of the petitioner to be released on bail u/s 167(2)
CrPC, as though the charge-sheet in the case had been
filed within the stipulated period, the sanction for his
B prosecution was not obtained as a result of which no
cognizance was taken of the offence and remand orders
continued to be made and the petitioner remained in
magisterial custody.
CODE OF CRIMINAL PROCEDURE, 1973:
C
SUPREME COURT REPORTS
C
Dismissing the petition, the Court
HELD: 1.1. The power of remand is vested in the
court at the very initial stage before taking of cognizance
u/s 167(2) Cr.P.C. During the period of investigation, the
accused is under the custody of the Magistrate before
D whom he or she is first produced. During that stage, u/s
167(2) Cr.P.C., the Magistrate is vested with authority to
remand the accused to custody, both police custody and/
or judicial custody, for 15 days at a time, up to a
maximum period of 60 days in cases of offences
E punishable for less than 10 years and 90 days where the
offences are punishable for over 10 years or even death
sentence. [para 15 and 18] [1047-G; 1052-B-C]
1.2. The scheme of the Cr.P.C. is such that once the
investigation stage is completed, the court proceeds to
F the next stage, which is the taking of cognizance and trial.
An accused has to remain in custody of some court.
Once cognizance is taken, the power to remand shifts to
the provisions of s.309 Cr.P.C., under which the trial court
is empowered to postpone or adjourn proceedings and,
G for the said purpose, to extend the period of detention
from time to time. However, the provisions of s. 309
Cr.P.C. have no application to the facts of the instant
case. [para 15 and 18] [1047-G-H; 1048-B; 1052-A]
H
1.3. In the event, an investigating authority fails to file
SURESH KUMAR BHIKAMCHAND JAIN v. STATE OF 1039
MAHARASHTRA
the charge-sheet within the stipulated period, the accused
is entitled to be released on statutory bail. In such a
situation, the accused continues to remain in the custody
of the Magistrate till such time as cognizance is taken by
the court trying the offence, when the said court assumes
custody of the accused for purposes of remand during
the trial in terms of s.309 Cr.P.C. The two stages are
different, but one follows the other so as to maintain a
continuity of the custody of the accused with a court.
[para 18] [1052-C-E]
1.4. Sanction is an enabling provision to prosecute,
which is totally separate from the concept of investigation
which is concluded by the filing of the charge-sheet. The
two are on separate footings. Merely because sanction
has not been obtained to prosecute the accused and to
proceed to the stage of s.309 Cr.P.C., it cannot be said
that the accused is entitled to grant of statutory bail, as
envisaged in s.167 Cr.P.C. Grant of sanction is nowhere
contemplated u/s 167 Cr.P.C. What the said Section
contemplates is the completion of investigation in
respect of different types of cases within a stipulated
period and the right of an accused to be released on bail
on the failure of the investigating authorities to do so.
Once a charge-sheet is filed within the stipulated time, the
question of grant of default bail or statutory bail does not
arise. Whether cognizance is taken or not is not material
as far as s.167 Cr.P.C. is concerned. [para 17-19] [1050G-H; 1051-F-G; 1052-F-G]
1.5. In the instant case, both the charge-sheet as also
the supplementary charge-sheet were filed within 90 days
from the date of the petitioner’s arrest and remand to
police custody. It is true that cognizance was not taken
by the Special Court on account of failure of the
prosecution to obtain sanction to prosecute the accused
under the provisions of the PC Act, but such failure does
not amount to non-compliance of the provisions of
1040
A
B
C
D
E
F
G
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A s.167(2) CrPC. The filing of charge-sheet is sufficient
compliance with the provisions of s.167(2)(a)(ii). The right
which may have accrued to the petitioner, had chargesheet not been filed, is not attracted to the facts of the
instant case. [para 17 & 18] [1050-F-G; 1051-F-G]
B
Sanjay Dutt v. State 1994 (3) Suppl. SCR 263 = (1994)
5 SCC 410; Natabar Parida v. the State of Orissa 1975
Suppl. SCR 137 = (1975) 2 SCC 220 – referred to.
1.6 . This Court, therefore, holds that though the
C prosecution had not been able to obtain sanction to
prosecute the accused, he was not entitled to grant of
statutory bail since the charge-sheet had been filed well
within the period contemplated u/s 167(2)(a)(ii) Cr.P.C.
[para 19] [1052-F]
D
Case Law Reference:
E
F
G
1994 (3) Suppl. SCR 263 referred to
para 10
1975 Suppl. SCR 137
para 10
referred to
CRIMINAL APPELLATE JURISDICTION : SLP (Criminal)
No. 147 of 2013.
From the Judgment & Order dated 17.12.2012 of the High
Court of Judicature at Bombay Bench at Aurangabad in
Criminal Application No. 4601 of 2012.
U.U. Lalit, Nagendra Rai, Harish Salve, Siddharth
Aggarwal, Shyel Trehan, Subhash Jadhav, Adit S. Pujari, Arjun
S. Suri, Nikhil Pillai, Sudesh Kotwal, Kumar Rachit, Liz Mathew
for the Petitiioner.
B.H. Marlapalle, Amol B. Karande, Kunal Cheema, Naresh
Kumar, Sanjay V. Kharde, Sachin J. Patil, Preshit V. Surshe,
Asha Gopalan Nair for the Respondents.
H
H
The Judgment of the Court was delivered by
SURESH KUMAR BHIKAMCHAND JAIN v. STATE OF 1041
MAHARASHTRA
ALTAMAS KABIR, CJI. 1. This Special Leave Petition
arises out of the judgment and order dated 17th December,
2012, passed by the Aurangabad Bench of the Bombay High
Court in CRLA No. 4601 of 2012, dismissing the same and
directing the Special Judge, in seisin of the matter, to expedite
the hearing on framing of charge, as had been directed by this
Court on 12th October, 2012, while disposing of Special Leave
to Appeal (Crl.) No. 6463 of 2012, filed by the co-accused
Pradeep Raisoni.
2. This case has thrown into focus certain important issues
regarding the right of an accused to be released on bail under
Section 167(2) of the Code of Criminal Procedure, 1973,
hereinafter referred to as “Cr.P.C.”. One of such issues
concerns the power of the Magistrate to pass orders of remand
even beyond the period envisaged under Section 167(2)
Cr.P.C. In the instant case, despite charge-sheet having been
filed, no cognizance has been taken on the basis thereof. The
learned Magistrate has, however, continued to pass remand
orders, without apparently having proceeded to the stage
contemplated under Section 309 Cr.P.C. In order to appreciate
the issues which have cropped up during the hearing of the
instant case, it is necessary to briefly set out the facts giving
rise to the said questions, which have fallen for determination.
3. As per the prosecution case, the Petitioner, Suresh
Kumar Bhikamchand Jain, is alleged to have misappropriated
amounts meant for development of slums in Jalgaon city, when
he was functioning as the Minister of Housing and Slum Area
Development, as a Member of the Legislative Assembly.
Initially, charge-sheet was filed against certain persons claiming
to be the contractors and the Vice-President of the Municipal
Corporation, Jalgaon. Thereafter, during investigation the
Petitioner was arrested on 11th March, 2012, and while chargesheet was filed against the four other accused persons on 25th
April, 2012, a supplementary charge-sheet came to be filed
against the Petitioner herein on 1st June, 2012. For a while,
1042
A
B
C
D
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A the Petitioner was released on interim bail, but upon rejection
of his application for bail on merit, he was again taken into
custody on 5th July, 2012.
4. What has been stressed upon on behalf of the Petitioner
is that, although, charge-sheet had been filed within the time
B
stipulated under Section 167(2) Cr.P.C., sanction to prosecute
the Petitioner had not been obtained, as a result whereof, no
cognizance was taken of the offence. Notwithstanding the
above, remand orders continued to be made and the Petitioner
remained in magisterial custody.
C
5. At this stage, it may be pertinent to point out that the
Petitioner is an accused in respect of offences punishable
under Sections 120B, 409, 411, 406, 408, 465, 466, 468, 471,
177, 109 read with Section 34 of the Indian Penal Code,
D hereinafter referred to as “IPC” and also under Sections
13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act,
1988, hereinafter referred to as “the PC Act”, in Crime No. 13
of 2006, registered with the City Police Station Jalgaon.
6. Appearing in support of the Special Leave Petition, Mr.
U.U. Lalit, learned senior Advocate, submitted that since the
statutory period of 90 days, envisaged under Section 167(2)
Cr.P.C., had lapsed, the Petitioner could not have been
remanded to custody, as had been done by the learned Special
Judge, who is yet to take cognizance for want of sanction. Mr.
Lalit submitted that the Petitioner was, therefore, entitled to be
released on bail forthwith, since the orders of remand passed
by the learned Magistrate after a period of 90 days were without
jurisdiction and, therefore, invalid in the facts and circumstances
of the case.
E
E
F
F
G
G
H
7. Mr. Lalit also submitted that Section 309 Cr.P.C., which
also deals with remand of the accused under certain
circumstances, does not apply to the allegations relating to the
provisions of the PC Act, inasmuch as, there is no committal
H proceeding contemplated in the proceeding before the learned
SURESH KUMAR BHIKAMCHAND JAIN v. STATE OF 1043
MAHARASHTRA [ALTAMAS KABIR, CJI.]
Special Judge. However, as far as Section 309 Cr.P.C. is
concerned, Mr. Lalit submitted that the same would be
applicable only after cognizance of the offence had been taken
or upon the commencement of the trial before the Special
Court. In the absence of cognizance being taken by the Special
Court, it could not be said that the trial had commenced and,
therefore, further detention of the Petitioner was wholly illegal
and not authorised in law and he was, therefore, entitled to be
released on bail forthwith on the basis of the “indefeasible right”
acquired by him on the failure of the Investigating Authorities
to obtain sanction for prosecuting the Petitioner.
8. Mr. Lalit submitted that the High Court also went wrong
in holding that in the absence of sanction, the actual trial could
not be stayed and could be proceeded with and that the
question of grant of sanction could be considered at the stage
of framing of charge, as to whether such sanction was actually
required to prosecute the accused.
9. In support of his submission, Mr. Lalit referred to and
relied upon the Constitution Bench decision of this Court in
Sanjay Dutt v. State [(1994) 5 SCC 410], wherein the said
Bench had occasion to consider the effect of non-completion
of investigation within the time stipulated under Section 167(2)
Cr.P.C. Learned counsel pointed out that in the said decision,
it has, inter alia, been held that default in completion of
investigation within 180 days did not give a fully indefeasible
right to the accused to be released on bail. Such a right arises
from the time of default in filing of the charge-sheet and
continues till the filing thereof, but does not survive once the
charge-sheet is filed. Thereafter, grant of bail would be decided
on merits. Mr. Lalit submitted that the indefeasible right referred
to in the said decision would become absolute in the event an
application for bail was filed after the expiry of the statutory
period stipulated by the statute, but before filing of the chargesheet. In such a case, Mr. Lalit submitted that the concerned
accused was entitled as a matter of right to be released on bail.
1044
A
B
C
D
E
F
G
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
10. Mr. Lalit also referred to the decision of this Court in
Natabar Parida v. the State of Orissa [(1975) 2 SCC 220],
which was decided by a Bench of 2-Judges, who also had
occasion to consider the impact of Section 167(2) Cr.P.C. and
the proviso (a) thereto. In the said case, the powers of the High
B Court to pass an order of remand of an accused on the basis
of inherent powers, was sought to be negated. It was ultimately
held that the Court will have no inherent power of remand of an
accused to any custody, unless the power is conferred by law.
Mr. Lalit urged that since remand orders passed against the
C Petitioner in the present case did not have the sanction either
of Section 167(2) Cr.P.C. or Section 309 Cr.P.C., the Petitioner
was entitled to be released on statutory bail forthwith.
11. Appearing for the State of Maharashtra, Mr. Sanjay V.
Kharde, learned Advocate, supported the decision of the High
D Court and urged that with the filing of the charge-sheet under
Section 167(2) Cr.P.C., the conditions of the said Section stood
satisfied and even if sanction had not been obtained for
prosecuting the Accused, the Trial Court was entitled to proceed
further in the matter. Mr. Kharde submitted that the orders of
E remand passed by the Trial Court were not vitiated since
charge-sheet had already been filed within 90 days of the arrest
of the Petitioner.
12. Also referring to the decision in Sanjay Dutt’s case
(supra),
Mr. Kharde submitted that the “indefeasible right” of the
F
accused to be released on bail under Section 167(2) Cr.P.C.,
in default of completion of the investigation and filing of chargesheet within the time allowed, is a right which accrued to and
is enforceable by the accused only from the time of default till
G the filing of the charge-sheet and it does not survive or remain
enforceable on the charge-sheet being filed. Accordingly, if in
a given case, the accused applies for bail, under the aforesaid
provision, on expiry of the period of 180 days or the extended
period, as the case may be, then he has to be released on bail
forthwith. However, once the charge-sheet is filed, the question
H
SURESH KUMAR BHIKAMCHAND JAIN v. STATE OF 1045
MAHARASHTRA [ALTAMAS KABIR, CJI.]
of bail has to be decided only with reference to the merits of
the case under the principles relating to grant of bail to an
accused after filing of the charge-sheet. Mr. Kharde reiterated
that in the instant case since the charge-sheet had already
been filed, notwithstanding the fact that sanction had not been
obtained, it could not be said that the powers of the learned
Magistrate or the Trial Court to pass orders of remand came
to an end, even if sanction had not been obtained for
prosecuting the accused under the provisions of the PC Act.
13. The question posed in this Special Leave Petition
concerns the right of a Magistrate or the Trial Court to pass
orders of remand in terms of Section 167(2) Cr.P.C. beyond
the period prescribed therein. Section 167(2) Cr.P.C., which
is relevant for an understanding of the issues involved in this
case, is extracted hereinbelow:
1046
A
A
[2013] 1 S.C.R.
custody under this paragraph for a total period exceeding(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
B
B
C
C
D
D
(2) The Magistrate to whom an accused person is
forwarded under this section may, whether he has or has
not jurisdiction to try the case, from time to time, authorise
the detention of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding fifteen days
in the whole; and if he has no jurisdiction to try the case
or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded
to a Magistrate having such jurisdiction:
E
E
Provided that-
G
“167. Procedure when investigation cannot be
completed in twenty-four hours.
(1) *** *** ***
(a) The Magistrate may authorize the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days, if he is satisfied
that adequate grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused person in
SUPREME COURT REPORTS
F
H
F
G
H
(ii) Sixty days, where the investigation relates to any other
offence,
and, on the expiry of the said period of ninety days, or sixty
days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail,
and every person released on bail under this sub-section
shall be deemed to be so released under the provisions
of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorize detention of the accused
in custody of the police under this section unless the
accused is produced before him in person for the first time
and subsequently every time till the accused remains in the
custody of the police, but the Magistrate may extend further
detention in judicial custody on production of the accused
either in person or through the medium of electronic video
linkage;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall authorise
detention in the custody of the police.
Explanation I. - For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period
specified in paragraph (a), the accused shall be detained
in custody so long as he does not furnish bail.
Explanation II. - If any question arises whether an accused
person was produced before the Magistrate as required
under clause (b), the production of the accused person
may be proved by his signature on the order authorising
detention or by the order certified by the Magistrate as to
SURESH KUMAR BHIKAMCHAND JAIN v. STATE OF 1047
MAHARASHTRA [ALTAMAS KABIR, CJI.]
production of the accused person through the medium of
electronic video linkage, as the case may be.
Provided further that in case of a woman under
eighteen years of age, the detention shall be authorised
to be in the custody of a remand home or recognised
social institution.”
14. From the above provision, it would be amply clear that
the Magistrate may authorise the detention of an accused
person, otherwise than in the custody of the police, beyond a
period of 15 days, if he is satisfied that there are adequate
grounds for doing so, but no Magistrate is authorised to detain
the accused person in custody for a total period exceeding 90
days where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of
not less than ten years and 60 days where the investigation
relates to any other offence. In other words, if an accused was
ready to offer bail, once the stipulated period for the
investigation had been completed, then the Magistrate no
longer had the authority to extend the period of detention beyond
the said period of 90 days and, consequently, he had no option
but to release the accused on bail. The language used in
Sections 167(2)(a)(i) and (ii) is that on the expiry of the period
of 90 days or 60 days, as the case may be, the accused person
shall be released on bail, if he is prepared to and does furnish
bail. The direction upon the learned Magistrate or the Trial Court
is mandatory in nature and any detention beyond the said
period would be illegal.
15. The power of remand is vested in the Court at the very
initial stage before taking of cognizance under Section 167(2)
Cr.P.C. Once cognizance is taken, the power to remand shifts
to the provisions of Section 309 Cr.P.C., under which the Trial
Court is empowered to postpone or adjourn proceedings and,
for the said purpose, to extend the period of detention from time
to time. Section 309(2) Cr.P.C. contemplates a situation where
if the Court after taking cognizance of an offence or
1048
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B
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A commencement of trial finds it necessary to postpone the
commencement of, or adjourn, any inquiry or trial, it may, for
reasons to be recorded, postpone or adjourn the inquiry or trial
on such terms as it thinks fit, for such time as it considers
reasonable, and may by a warrant remand the accused if
B in custody, for a period of fifteen days at a time. Although, the
provisions of Section 309 Cr.P.C. may not have any application
to the facts of this case, in order to appreciate the view that
we have taken, the same are reproduced hereinbelow:
C
C
D
D
E
E
F
F
G
G
“309. Power to postpone or adjourn proceedings.—
(1) In every inquiry or trial the proceedings shall be held
as expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same shall
be continued from day to day until all the witnesses in
attendance have been examined, unless the Court finds
the adjournment of the same beyond the following day to
be necessary for reasons to be recorded.
Provided that when the inquiry or trial relates to an offence
under Sections 376 to Section 376 D of the Indian Penal
Code (45 of 1860), the inquiry or trial shall, as far as
possible, be completed within a period of two months from
the date of commencement of the examination of
witnesses.
(2) If the court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or
trial, it may, from time to time, for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks
fit, for such time as it considers reasonable, and may by
a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused
person to custody under this section for a term exceeding
fifteen days at a time:
H
H
SURESH KUMAR BHIKAMCHAND JAIN v. STATE OF 1049
MAHARASHTRA [ALTAMAS KABIR, CJI.]
1050
Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded
in writing:
A
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show
cause against the sentence proposed to be imposed on
him.
B
A
B
SUPREME COURT REPORTS
16. At this juncture, we may refer to certain dates which
are relevant to the facts of this case, namely:
(a)
11.03.2012 - Petitioner arrested and remanded to
police custody;
(b)
25.04.2012 - First charge-sheet filed against the
four accused;
(c)
1.06.2012 - Supplementary charge-sheet filed in
which the Petitioner is named;
(d)
30.07.2012 - The Trial Court rejected the
Petitioner’s prayer for grant of bail;
(e)
13.09.2012 - The High Court confirmed the order
of the Trial Court;
(f)
2.10.2012 - Application filed under Section 167(2)
Cr.P.C. before the Trial Court;
(g)
5.10.2012 - Trial Court rejected the application
under Section 167(2) Cr.P.C.
Provided also that –
C
C
(a) no adjournment shall be granted at the request of a
party, except where the circumstances are beyond the
control of that party;
(b) the fact that the pleader of a party is engaged in
another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his
pleader is not present or the party or his pleader though
present in Court, is not ready to examine or cross-examine
the witness, the Court may, if thinks fit, record the
statement of the witness and pass such orders as it thinks
fit dispensing with the examination-in-chief or crossexamination of the witness, as the case may be.
D
E
Explanation 1 – If sufficient evidence has been obtained
to raise a suspicion that the accused may have committed
an offence and it appears likely that further evidence may
be obtained by a remand this is a reasonable cause for a
remand.
F
Explanation 2 – The terms on which an adjournment or
postponement may be granted include, in appropriate
cases, the payment of costs by the prosecution or the
accused.”
G
H
[2013] 1 S.C.R.
D
E
17. From the above dates, it would be evident that both
the charge-sheet as also the supplementary charge-sheet were
filed within 90 days from the date of the Petitioner’s arrest and
remand to police custody. It is true that cognizance was not
F taken by the Special Court on account of failure of the
prosecution to obtain sanction to prosecute the accused under
the provisions of the PC Act, but does such failure amount to
non-compliance of the provisions of Section 167(2) Cr.P.C. is
the question with which we are confronted. In our view, grant of
G sanction is nowhere contemplated under Section 167 Cr.P.C.
What the said Section contemplates is the completion of
investigation in respect of different types of cases within a
stipulated period and the right of an accused to be released
on bail on the failure of the investigating authorities to do so.
H The scheme of the provisions relating to remand of an accused,
SURESH KUMAR BHIKAMCHAND JAIN v. STATE OF 1051
MAHARASHTRA [ALTAMAS KABIR, CJI.]
first during the stage of investigation and, thereafter, after
cognizance is taken, indicates that the Legislature intended
investigation of certain crimes to be completed within 60 days
and offences punishable with death, imprisonment for life or
imprisonment for a term of not less than 10 years, within 90
days. In the event, the investigation is not completed by the
investigating authorities, the accused acquires an indefeasible
right to be granted bail, if he offers to furnish bail. Accordingly,
if on either the 61st day or the 91st day, an accused makes an
application for being released on bail in default of charge-sheet
having been filed, the Court has no option but to release the
accused on bail. The said provision has been considered and
interpreted in various cases, such as the ones referred to
hereinbefore. Both the decisions in Natabar Parida’s
case(supra) and in Sanjay Dutt’s case (supra) were instances
where the charge-sheet was not filed within the period
stipulated in Section 167(2) Cr.P.C. and an application having
been made for grant of bail prior to the filing of charge-sheet,
this Court held that the accused enjoyed an indefeasible right
to grant of bail, if such an application was made before the filing
of the charge-sheet, but once the charge-sheet was filed, such
right came to an end and the accused would be entitled to pray
for regular bail on merits.
18. None of the said cases detract from the position that
once a charge-sheet is filed within the stipulated time, the
question of grant of default bail or statutory bail does not arise.
As indicated hereinabove, in our view, the filing of charge-sheet
is sufficient compliance with the provisions of Section
167(2)(a)(ii) in this case. Whether cognizance is taken or not
is not material as far as Section 167 Cr.P.C. is concerned. The
right which may have accrued to the Petitioner, had chargesheet not been filed, is not attracted to the facts of this case.
Merely because sanction had not been obtained to prosecute
the accused and to proceed to the stage of Section 309
Cr.P.C., it cannot be said that the accused is entitled to grant
of statutory bail, as envisaged in Section 167 Cr.P.C. The
1052
A
B
C
D
E
F
G
[2013] 1 S.C.R.
A scheme of the Cr.P.C. is such that once the investigation stage
is completed, the Court proceeds to the next stage, which is
the taking of cognizance and trial. An accused has to remain
in custody of some court. During the period of investigation, the
accused is under the custody of the Magistrate before whom
B he or she is first produced. During that stage, under Section
167(2) Cr.P.C., the Magistrate is vested with authority to
remand the accused to custody, both police custody and/ or
judicial custody, for 15 days at a time, up to a maximum period
of 60 days in cases of offences punishable for less than 10
C years and 90 days where the offences are punishable for over
10 years or even death sentence. In the event, an investigating
authority fails to file the charge-sheet within the stipulated
period, the accused is entitled to be released on statutory bail.
In such a situation, the accused continues to remain in the
custody of the Magistrate till such time as cognizance is taken
D
by the Court trying the offence, when the said Court assumes
custody of the accused for purposes of remand during the trial
in terms of Section 309 Cr.P.C. The two stages are different,
but one follows the other so as to maintain a continuity of the
custody of the accused with a court.
E
19. Having regard to the above, we have no hesitation in
holding that notwithstanding the fact that the prosecution had
not been able to obtain sanction to prosecute the accused, the
accused was not entitled to grant of statutory bail since the
F charge-sheet had been filed well within the period
contemplated under Section 167(2)(a)(ii) Cr.P.C. Sanction is
an enabling provision to prosecute, which is totally separate
from the concept of investigation which is concluded by the filing
of the charge-sheet. The two are on separate footings.
G
20. In that view of the matter, the Special Leave Petition
deserves to be and is hereby dismissed.
R.P.
H
SUPREME COURT REPORTS
SLP dismissed.
[2013] 1 S.C.R. 1053
SURENDER KAUSHIK AND OTHERS
v.
STATE OF UTTAR PRADESH AND OTHERS
(Criminal Appeal No. 305 of 2013)
FEBRUARY 14, 2013
1054
A
B
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
FIR – Lodgment of two FIRs – In respect of same incident
– Permissibility – Held – Lodgment of two FIRs is not
permissible in respect of one and the same incident –
However, the concept of sameness does not encompass filing
of counter FIR – Prohibition is for further complaint by same
complainant and others against the same accused – In the
present case, the allegations in the FIRs are distinct and
separate and the same may be regarded as counter
complaint – Principle of sameness does not get attracted –
Hence, second FIR not liable to be quashed on account of
existence of first FIR – Constitution of India, 1950 – Articles
226 and 227.
The question for consideration in the present appeal
was whether after registration of FIR and commencement
of investigation, a second FIR relating to the same
incident on the basis of a direction issued by the
Magistrate u/s. 156 (3) Cr.P.C. can be registered.
1053
[2013] 1 S.C.R.
A registration of the case under Cr.P.C, for an investigation
in that regard would have already commenced and
allowing registration of further complaint would amount
to an improvement of the facts mentioned in the original
complaint. The prohibition does not cover the allegations
B made by the accused in the first FIR alleging a different
version of the same incident. Thus, rival versions in
respect of the same incident do take different shapes and
in that event, lodgment of two FIRs is permissible. [Para
24] [1067-G-H; 1068-A-C]
C
C
D
D
E
E
F
F
G
G
H
H
Dismissing the appeal, the Court
HELD: 1. Lodgment of two FIRs is not permissible in
respect of one and the same incident. The concept of
sameness has been given a restricted meaning. It does
not encompass filing of a counter FIR relating to the same
or connected cognizable offence. What is prohibited is
any further complaint by the same complainant and
others against the same accused subsequent to the
SUPREME COURT REPORTS
2. In the present case, if the involvement of the
number of accused persons and the nature of the
allegations are scrutinized, it becomes crystal clear that
every FIR has a different spectrum. The allegations made
are distinct and separate. It may be regarded as a counter
complaint and cannot be stated that an effort has been
made to improve the allegations that find place in the first
FIR. It is impossible to say that the principle of sameness
gets attracted. If the said principle is made applicable to
the case at hand and the investigation is scuttled by
quashing the FIRs, the complainants in the other two
FIRs would be deprived of justice. The appellants have
lodged the FIR making the allegations against certain
persons, but that does not debar the other aggrieved
persons to move the court for direction of registration of
an FIR as there have been other accused persons
including the complainant in the first FIR involved in the
forgery and fabrication of documents and getting benefits
from the statutory authority. To say that it is a second FIR
relating to the same cause of action and the same
incident and there is sameness of occurrence and an
attempt has been made to improvise the case is not
correct. Hence, the plea that the FIR lodged by the fourth
respondent is a second FIR and is, therefore, liable to be
quashed, does not merit acceptance. [Para 25] [1068-GH; 1069-A-E]
SURENDER KAUSHIK v. STATE OF UTTAR
PRADESH
1055
Upkar Singh v. Ved Prakash and Ors. (2004) 13 SCC
292 – relied on.
Amrawati and Anr. v. State of UP 2005 Crl. L.J. 755; Lal
Kamlendra Pratap Singh v. State of Uttar Pradesh and Ors.
(2009) 4 SCC 437: 2009 (4) SCR 1027; State of Haryana
and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335:
1990 (3) Suppl. SCR 259; T.T. Antony v. State of Kerala
and Ors. (2001) 6 SCC 181: 2001 (3) SCR 942; Pandurang
Chandrakant Mhatre and Ors. v. State of Maharashtra (2009)
10 SCC 773: 2009 (15) SCR 58; Babubhai v. State of
Gujarat and Ors. (2010) 12 SCC 254: 2010 (10) SCR 651;
Ram Lal Narang v. State (Delhi Administration) (1979) 2 SCC
322; State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru
(2005) 11 SCC 600: 2005 (2) Suppl. SCR 79; Ram Mohan
Garg v. State of U.P. (1990) 27 ACC 438; Kari Choudhary v.
Sita Devi (2002) 1 SCC 714: 2001 (5) Suppl. SCR 588;
State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554: 1980
(2) SCR 16; Ramesh Baburao Devaskar v. State of
Maharashtra (2007) 13 SCC 501; Vikram v. State of
Maharashtra (2007) 12 SCC 332 – referred
to.
Case Law Reference:
2005 Crl. L.J. 755
Referred to
Para 3
2009 (4) SCR 1027
Referred to
Para 3
1990 (3) Suppl. SCR 259 Referred to
Para 8
2010 (10) SCR 651
Referred to
Para 8
2005 (2) Suppl. SCR 79
Referred to
Para 10
(1979) 2 SCC 322
Referred to
Para 13
2001 (3) SCR 942
Referred to
Para 14
(2004) 13 SCC 292
Relied on
Para 16
(1990) 27 ACC 438
Referred to
Para 16
1056
A
B
C
A
B
SUPREME COURT REPORTS
[2013] 1 S.C.R.
2001 (5) Suppl. SCR 588 Referred to
Para 18
1980 (2) SCR 16
Referred to
Para 18
2009 (15) SCR 58
Referred to
Para 21
2001 (3 ) SCR 942
Referred to
Para 21
(2007) 13 SCC 501
Referred to
Para 21
2007 (6) SCR 185
Referred to
Para 21
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
C No. 305 of 2013.
From the Judgment & Order dated 12.10.2012 of the High
Court of Judicature at Allahabad, Uttar Pradesh in Criminal
Misc. Writ Petition No. 15077 of 2012.
D
D
E
E
Nagendra Rai, R.K. Dash, Altaf Ahmed, Smarhar Singh,
Shantanu Sagar, Abhishek Kr. singh, Gopi Raman, Chandra
Prakash, Abhisth Kumar, Archana Singh, Ashok K. Srivasta for
the appearing parties.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
F
G
H
2. The present appeal, by special leave, is directed
against the order dated 12.10.2012 passed by the Division
F Bench of the High Court of Judicature at Allahabad in Criminal
Miscellaneous Writ Petition No. 15077 of 2012 wherein the
High Court has declined to quash the FIR No. 442 of 2012
registered at P.S. Civil Lines, Meerut, that has given rise to
Crime No. 491 of 2012 for offences punishable under Sections
G 406, 420, 467, 468, 471, 504 and 506 of the Indian Penal Code
(for short “the IPC”).
3. At the very outset, it is requisite to be stated that the
appellants had invoked the jurisdiction under Article 226 of the
H Constitution for quashment of the FIR on two counts, namely,
SURENDER KAUSHIK v. STATE OF UTTAR
PRADESH [DIPAK MISRA, J.]
1057
first, that no prima facie case existed for putting the criminal
law into motion and, second, when on the similar and identical
cause of action and allegations, FIR No. 425 of 2012
corresponding to Crime No. 475 of 2012 had already been
registered, a second FIR could not have been lodged and
entertained. The High Court, by the impugned order, has opined
that it cannot be held that no prima facie case is disclosed and,
thereafter, proceeded to issue certain directions in relation to
surrender before the concerned court and grant of interim bail
in view of the decision rendered by the Full Bench of the
Allahabad High Court in Amrawati and Another v. State of UP1
and Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and
Others2.
4. We are not adverting to the second part of the order as
the controversy in this regard has not emerged before this Court
in the present case. The assail to the validity of registration of
second FIR has not been dealt with by the High Court. Mr.
Nagendra Rai, learned senior counsel appearing for the
appellants, did not advance any contention and, rightly so, with
regard to the existence of a prima facie case for registration
of the FIR, but emphatically put forth the proponements
pertaining to the validity of entertaining the second FIR despite
the lodgment of an earlier FIR in respect of the same cause of
action and the same incident. Therefore, we shall restrict our
delineation to the said sentinel issue exclusively.
5. From the factual background which has been exposited
in this appeal and the documents annexed thereto, it is limpid
that FIR No. 274 of 2012 was lodged by the appellant No. 1,
Surender Kaushik, as the Secretary of Sanjeev Memorial
Education Society on 29.5.2012 against Dr. Subhash Gupta,
Dr. Harshu Gupta and Yunus Pahalwan, members of the
society, alleging that in collusion with one Surya Prakash Jalan,
they had prepared fake and fraudulent documents. It was further
1.
2005 Cri. L.J. 755.
2.
(2009) 4 SCC 437.
1058
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A alleged that their signatures had been forged indicating their
participation in various general/executive meetings of the
society, though they had not attended the said meetings. On
the basis of the said FIR, a crime under Sections 420, 467,
468 and 471 of the IPC was registered.
B
6. One Dr. Subhash Gupta filed an application before the
Additional Chief Judicial Magistrate, Meerut, under Section
156(3) of the Code of Criminal Procedure (for brevity “the
Code”) alleging, inter alia, that he was never a member of the
Sanjeev Memorial Education Society, Ghaziabad and further
C he was neither present in the meetings of the society which
were held on 1.10.2008 and 16.4.2009 nor was he a signatory
to the resolutions passed in the said meetings. It was further
asseverated in the application that the accused persons,
namely, P.C. Gupta, Seema Gupta, Surender Kaushik,
D Kamlesh Sharma and Vimal Singh, had fabricated an affidavit
on 15.12.2008 with forged signatures and filed before the
Deputy Registrar, Society Chit and Fund, Mohanpuri, Meerut.
The said petition was entertained and on the basis of the
direction of the learned Magistrate, FIR No. 425 of 2012 was
E lodged on 21.8.2012 for the offences punishable under
Sections 406, 420, 467, 468, 471, 504 and 506 of the IPC.
7. As the facts would further unfurl, FIR No. 442 of 2012
which gave rise to Crime No. 491 of 2012 was registered on
F 4.9.2012 and it is apt to note that the said FIR came to be
registered on the basis of an order passed by the learned
Magistrate under Section 156(3) of the Code. In the said case,
the complainant was Smt. Nidhi Jalan, one of the members of
the Governing Body of the society, and it was alleged that she
is a member of the society which runs an educational institution,
G
namely, Mayo International School, and the accused persons,
namely, P.C. Gupta, Seema Gupta, Vikash Jain, Bhawna Jain,
Sushil Jain, Shubhi Jain, Surender Kaushik, Kamlesh Sharma,
Rajender Sharma, Virender Bhardwaj, Vimal Singh and Renu
Sharma, having entered into a conspiracy had prepared forged
H
SURENDER KAUSHIK v. STATE OF UTTAR
PRADESH [DIPAK MISRA, J.]
1059
documents regarding meetings held on different dates,
fabricated signatures of the members and filed before the
competent authority with the common intention to grab the
property/funds of the society. Be it noted, the members had filed
affidavits before the competent authority that they had never
taken part in the meetings of the school management and had
not signed any papers. As already stated, the said FIR
pertained to offences punishable under Sections 406, 420,
467, 468, 471, 504 and 506 of the IPC.
8.It is submitted by Mr. Nagendra Rai, learned senior
counsel, that the FIR No. 442 of 2012 could not have been
lodged and entertained as law prohibits lodgment of the second
FIR in respect of the same cognizable offence and it is
propounded by him that when there is a legal impediment for
setting the criminal law in motion, the decision in State of
Haryana and Others v. Bhajan Lal and Others3 gets attracted.
To bolster the contention that the second FIR could not have
been entertained, the learned senior counsel has commended
us to the decisions in T.T. Antony v. State of Kerala and
Others4, Pandurang Chandrakant Mhatre and Others v. State
of Maharashtra5 and Babubhai v. State of Gujarat and Others6.
9. Mr. R.K. Dash, learned senior counsel for the State, per
contra, submitted that there is no absolute prohibition in law for
lodgment of a second FIR and, more so, when allegations are
made from different spectrum or, for that matter, when different
versions are put forth by different persons and there are
different accused persons. It is urged by him that the decisions
relied upon by the appellants are distinguishable on facts and
the proposition of law laid down therein is not applicable to the
case at hand. The learned senior counsel would further contend
that the principles stated in Ram Lal Narang v. State (Delhi
1060
A
B
C
C
D
D
E
E
G
10. Mr. Altaf Ahmed, learned senior counsel appearing for
the complainant, the fourth respondent herein, has submitted
that on certain occasions, same set of facts may constitute
different offences and when there are two distinct offences
having different ingredients, there would be no embargo for
registration of two FIRs. It is further canvassed by him that on
certain occasions, two FIRs may have some overlapping
features but it is the substance of the allegations which has to
be looked into, and if a restricted view is taken, then no counter
FIR can ever be lodged. The learned senior counsel would
further submit that the investigation by the police cannot be
scuttled and the accused persons cannot be allowed to pave
the escape route in this manner. It has been highlighted by him
that lodging of second FIR for the same cause of action or
offence is based on the principle that a person should not be
vexed twice, but if there are offences having distinctive
ingredients and overlapping features, it would not invite the
frown of Article 20 of the Constitution of India. The
pronouncement in State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru9 has been commended to us.
11. Chapter XII of the Code deals with information to the
police and their powers to investigate. As provided under
F Section 154 of the Code, every information relating to
commission of a cognizable offence either given orally or in
writing is required to be entered in a book to be kept by the
officer-in-charge of the concerned police station. The said FIR,
as mandated by law, has to pertain to a cognizable case.
Section 2(c) of the Code defines “cognizable offence” which
G
also deals with cognizable cases. It reads as follows:-
3.
1992 Supp (1) SCC 335.
4.
(2001) 6 SCC 181.
7.
(1979) 2 SCC 322.
5.
(2009) 10 SCC 773.
8.
(2004) 13 SCC 292.
6.
(2010) 12 SCC 254.
9.
(2005) 11 SCC 600.
H
[2013] 1 S.C.R.
A Administration)7 and Upkar Singh v. Ved Prakash and Others8
are attracted to the case at hand.
B
F
SUPREME COURT REPORTS
H
SURENDER KAUSHIK v. STATE OF UTTAR
PRADESH [DIPAK MISRA, J.]
1061
1062
“cognizable offence” means an offence for which, and
“cognizable case” means a case in which, a police officer
may, in accordance with the First Schedule or under any
other law for the time being in force, arrest without warrant;”
A
12. If the primary requirement is satisfied, an FIR is
registered and the criminal law is set in motion and the officerin-charge of the police station takes up the investigation. The
question that has emerged for consideration in this case is
whether after registration of the FIR and commencement of the
investigation, a second FIR relating to the same incident on the
basis of a direction issued by the learned Magistrate under
Section 156(3) of the Code can be registered.
B
13. For apposite appreciation of the issue raised, it is
necessitous to refer to certain authorities which would throw
significant light under what circumstances entertainment of
second FIR is prohibited. In Ram Lal Narang (supra), this Court
was dealing with the facts and circumstances of a case where
two FIRs were lodged and two charge-sheets were filed. The
Bench took note of the fact that the conspiracy which was the
subject-matter of the second case could not be said to be
identical with the conspiracy which was the subject-matter of
the first one and further the conspirators were different, although
the conspiracy which was the subject-matter of the first case
may, perhaps, be said to have turned out to be a part of the
conspiracy which was the subject-matter of the second case.
After adverting to the various facets, it has been opined that
occasions may arise when a second investigation started
independently of the first may disclose wide range of offences
including those covered by the first investigation. Being of this
view, the Court did not find any flaw in the investigation on the
basis of the subsequent FIR.
14. In T.T. Antony (supra), it was canvassed on behalf of
the accused that the registration of fresh information in respect
of the very same incident as an FIR under Section 154 of the
Code was not valid and, therefore, all steps taken pursuant
C
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A thereto including investigation were illegal and liable to be
quashed. The Bench, analyzing the scheme of the provisions
of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the
Code, came to hold that only the earliest or the first information
in regard to the commission of a cognizable offence satisfies
B the requirements of Section 154 of the Code and, therefore,
there can be no second FIR and consequently, there can be
no fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence or the
same occurrence or incident giving rise to one or more
C cognizable offences. It was further observed that on receipt of
information about a cognizable offence or an incident giving rise
to a cognizable offence or offences and on entering the FIR in
the station house diary, the officer in charge of a police station
has to investigate not merely the cognizable offence reported
in the FIR but also other connected offences found to have been
D
committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in Section
173 of the Code.
15. It is worth noting that in the said case, the two-Judge
E Bench explained and distinguished the dictum in Ram Lal
Narang (supra) by opining that the Court had indicated that the
real question was whether the two conspiracies were in truth
and substance the same and held that the conspiracies in the
two cases were not identical. It further proceeded to state that
F the Court did not repel the contention of the appellant regarding
the illegality of the second FIR and the investigation based
thereon being vitiated, but on facts found that the two FIRs in
truth and substance were different since the first was a smaller
conspiracy and the second was a larger conspiracy as it turned
G out eventually. Thereafter, the Bench explained thus: -
H
“The 1973 CrPC specifically provides for further
investigation after forwarding of report under sub-section
(2) of Section 173 CrPC and forwarding of further report
or reports to the Magistrate concerned under Section
173(8) CrPC. It follows that if the gravamen of the charges
SURENDER KAUSHIK v. STATE OF UTTAR
PRADESH [DIPAK MISRA, J.]
1063
1064
in the two FIRs — the first and the second — is in truth A
and substance the same, registering the second FIR and
making fresh investigation and forwarding report under
Section 173 CrPC will be irregular and the court cannot
take cognizance of the same.”
B
16. In Upkar Singh (supra), a three-Judge Bench was
addressing the issue pertaining to the correctness of law laid
down in the case of T.T. Antony (supra). The larger Bench took
note of the fact that a complaint was lodged by the first
respondent therein with Sikhera Police Station in Village
C
Fahimpur Kalan at 10.00 a.m. on 20th May, 1995 making
certain allegations against the appellant therein and some other
persons. On the basis of the said complaint, the police had
registered a crime under Sections 452 and 307 of the IPC. The
appellant had lodged a complaint in regard to the very same
incident against the respondents therein for having committed D
offences punishable under Sections 506 and 307 of the IPC
as against him and his family members. As the said complaint
was not entertained by the concerned police, he, under
compelling circumstances, filed a petition under Section 156(3)
of the Code before the Judicial Magistrate, who having found E
a prima facie case, directed the concerned police station to
register a crime against the accused persons in the said
complaint and to investigate the same and submit a report. On
the basis of the said direction, Crime No. 48-A of 1995 was
registered for offences punishable under Sections 147, 148, F
149 and 307 of the IPC. Challenging the direction of the
Magistrate, a revision was preferred before the learned
Sessions Judge who set aside the said direction. Being
aggrieved by the order passed by the learned Sessions Judge,
a Criminal Miscellaneous petition was filed before the High G
Court of Judicature at Allahabad and the High Court, following
its earlier decision in Ram Mohan Garg v. State of U.P. 10,
dismissed the revision. While dealing with the issue, this Court
10. (1990) 27 SCC 438.
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A referred to paragraph 18 of T.T. Antony (supra) and noted how
the same had been understood: -
B
C
“11. This observation of the Supreme Court in the said
case of T.T. Antony is understood by the learned counsel
for the respondents as the Code prohibiting the filing of a
second complaint arising from the same incident. It is on
that basis and relying on the said judgment in T.T. Antony
case an argument is addressed before us that once an FIR
is registered on the complaint of one party a second FIR
in the nature of a counter-case is not registrable and no
investigation based on the said second complaint could
be carried out.”
17. After so observing, the Court held that the judgment in
T.T. Antony (supra) really does not lay down such a proposition
D of law as has been understood by the learned counsel for the
respondent therein. The Bench referred to the factual score of
T.T. Antony (supra) and explained thus:-
E
“Having carefully gone through the above judgment, we do
not think that this Court in the said cases of T.T. Antony
v. State of Kerala has precluded an aggrieved person
from filing a counter-case as in the present case.”
To arrive at such a conclusion, the Bench referred to
paragraph 27 of the decision in T.T. Antony (supra) wherein it
F has been stated that a case of fresh investigation based on the
second or successive FIRs, not being a counter-case, filed in
connection with the same or connected cognizable offence
alleged to have been committed in the course of the same
transaction and in respect of which pursuant to the first FIR
G either investigation is under way or final report under Section
173(2) has been forwarded to the Magistrate, may be a fit case
for exercise of power under Section 482 of the Code or under
Articles 226/227 of the Constitution. Thereafter, the three-Judge
Bench ruled thus:
H
SURENDER KAUSHIK v. STATE OF UTTAR
PRADESH [DIPAK MISRA, J.]
1065
“In our opinion, this Court in that case only held that any
further complaint by the same complainant or others
against the same accused, subsequent to the registration
of a case, is prohibited under the Code because an
investigation in this regard would have already started and
further complaint against the same accused will amount to
an improvement on the facts mentioned in the original
complaint, hence will be prohibited under Section 162 of
the Code. This prohibition noticed by this Court, in our
opinion, does not apply to counter-complaint by the
accused in the first complaint or on his behalf alleging a
different version of the said incident.”
18. Be it noted, in the said verdict, reference was made
to Kari Choudhary v. Sita Devi11, wherein it has been opined
that there cannot be two FIRs against the same accused in
respect of the same case, but when there are rival versions in
respect of the same episode, they would normally take the
shape of two different FIRs and investigation can be carried
out under both of them by the same investigating agency.
Reference was made to the pronouncement in State of Bihar
v. J.A.C. Saldanha12 wherein it has been highlighted that the
power of the Magistrate under Section 156(3) of the Code to
direct further investigation is clearly an independent power and
does not stand in conflict with the power of the State
Government as spelt out under Section 3 of the Police Act.
19. It is worth noting that the Court also dealt with the view
expressed in Ram Lal Narang (supra) and stated thus: “22. A perusal of the judgment of this Court in Ram Lal
Narang v. State (Delhi Admn.) also shows that even in
cases where a prior complaint is already registered, a
counter-complaint is permissible but it goes further and
holds that even in cases where a first complaint is
1066
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D
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F
G
registered and investigation initiated, it is possible to file
a further complaint by the same complainant based on the
material gathered during the course of investigation. Of
course, this larger proposition of law laid down in Ram Lal
Narang case is not necessary to be relied on by us in the
present case. Suffice it to say that the discussion in Ram
Lal Narang case is in the same line as found in the
judgments in Kari Choudhary and State of Bihar v. J.A.C.
Saldanha. However, it must be noticed that in T.T. Antony
case, Ram Lal Narang case was noticed but the Court
did not express any opinion either way.”
13. (2007) 13 SCC 501.
H
[2013] 1 S.C.R.
20. Explaining further, the Court observed that if the law
laid down by this Court in T.T. Antony (supra) is to be accepted
to have held that a second complaint in regard to the same
incident filed as a counter complaint is prohibited under the
D Code, such conclusion would lead to serious consequences
inasmuch as the real accused can take the first opportunity to
lodge a false complaint and get it registered by the jurisdictional
police and then that would preclude the victim to lodge a
complaint.
E
21. In Pandurang Chandrakant Mhatre (supra), the Court
referred to T.T. Antony (supra), Ramesh Baburao Devaskar
v. State of Maharashtra13 and Vikram v. State of Maharashtra14
and opined that the earliest information in regard to the
F commission of a cognizable offence is to be treated as the first
information report and it sets the criminal law in motion and the
investigation commences on that basis. Although the first
information report is not expected to be an encyclopaedia of
events, yet an information to the police in order to be first
information report under Section 154(1) of the Code, must
G
contain some essential and relevant details of the incident. A
cryptic information about the commission of a cognizable
offence irrespective of the nature and details of such information
11. (2002) 1 SCC 714.
12. (1980) 1 SCC 554.
SUPREME COURT REPORTS
H
14. (2007) 12 SCC 332.
SURENDER KAUSHIK v. STATE OF UTTAR
PRADESH [DIPAK MISRA, J.]
1067
may not be treated as first information report. After so stating,
the Bench posed the question whether the information regarding
the incident therein entered into general diary given by PW-5
is the first information report within the meaning of Section 154
of the Code and, if so, it would be hit by Section 162 of the
Code. It is worth noting that analyzing the facts, the Court opined
that information given to the police to rush to the place of the
incident to control the situation need not necessarily amount to
an FIR.
22. In Babubhai (supra), this Court, after surveying the
earlier decisions, expressed the view that the court has to
examine the facts and circumstances giving rise to both the
FIRs and the test of sameness is to be applied to find out
whether both the FIRs relate to the same incident in respect of
the same occurrence or are in regard to the incidents which
are two or more parts of the same transaction. If the answer is
in the affirmative, the second FIR is liable to be quashed.
However, in case the contrary is proved, where the version in
the second FIR is different and they are in respect of two
different incidents/crimes, the second FIR is permissible. In
case the accused in the first FIR comes forward with a different
version or counterclaim in respect of the same incident,
investigation on both the FIRs has to be conducted.
23. It is worth noting that in the said case, the Court
expressed the view that the High Court had correctly reached
the conclusion that the second FIR was liable to be quashed
as in both the FIRs, the allegations related to the same incident
that had occurred at the same place in close proximity of time
and, therefore, they were two parts of the same transaction.
24. From the aforesaid decisions, it is quite luminous that
the lodgment of two FIRs is not permissible in respect of one
and the same incident. The concept of sameness has been
given a restricted meaning. It does not encompass filing of a
counter FIR relating to the same or connected cognizable
offence. What is prohibited is any further complaint by the same
1068
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[2013] 1 S.C.R.
A complainant and others against the same accused subsequent
to the registration of the case under the Code, for an
investigation in that regard would have already commenced and
allowing registration of further complaint would amount to an
improvement of the facts mentioned in the original complaint.
B As is further made clear by the three-Judge Bench in Upkar
Singh (supra), the prohibition does not cover the allegations
made by the accused in the first FIR alleging a different version
of the same incident. Thus, rival versions in respect of the same
incident do take different shapes and in that event, lodgment
C of two FIRs is permissible.
D
D
E
E
F
F
G
G
H
H
25. In the case at hand, the appellants lodged the FIR No.
274 of 2012 against four accused persons alleging that they
had prepared fake and fraudulent documents. The second FIR
came to be registered on the basis of the direction issued by
the learned Additional Chief Judicial Magistrate in exercise of
power under Section 156(3) of the Code at the instance of
another person alleging, inter alia, that he was neither present
in the meetings nor had he signed any of the resolutions of the
meetings and the accused persons, five in number, including
the appellant No. 1 herein, had fabricated documents and filed
the same before the competent authority. FIR No. 442 of 2012
(which gave rise to Crime No. 491 of 2012) was registered
because of an order passed by the learned Magistrate. Be it
noted, the complaint was filed by another member of the
Governing Body of the Society and the allegation was that the
accused persons, twelve in number, had entered into a
conspiracy and prepared forged documents relating to the
meetings held on different dates. There was allegation of
fabrication of the signatures of the members and filing of forged
documents before the Registrar of Societies with the common
intention to grab the property/funds of the Society. If the
involvement of the number of accused persons and the nature
of the allegations are scrutinized, it becomes crystal clear that
every FIR has a different spectrum. The allegations made are
distinct and separate. It may be regarded as a counter
SURENDER KAUSHIK v. STATE OF UTTAR
PRADESH [DIPAK MISRA, J.]
1069
complaint and cannot be stated that an effort has been made
to improve the allegations that find place in the first FIR. It is
well-nigh impossible to say that the principle of sameness gets
attracted. We are inclined to think so, for if the said principle
is made applicable to the case at hand and the investigation
is scuttled by quashing the FIRs, the complainants in the other
two FIRs would be deprived of justice. The appellants have
lodged the FIR making the allegations against certain persons,
but that does not debar the other aggrieved persons to move
the court for direction of registration of an FIR as there have
been other accused persons including the complainant in the
first FIR involved in the forgery and fabrication of documents
and getting benefits from the statutory authority. In the ultimate
eventuate, how the trial would commence and be concluded is
up to the concerned court. The appellants or any of the other
complainants or the accused persons may move the
appropriate court for a trial in one court. That is another aspect
altogether. But to say that it is a second FIR relating to the same
cause of action and the same incident and there is sameness
of occurrence and an attempt has been made to improvise the
case is not correct. Hence, we conclude and hold that the
submission that the FIR lodged by the fourth respondent is a
second FIR and is, therefore, liable to be quashed, does not
merit acceptance.
26. In view of the aforesaid premised reasons, the appeal,
being sans substance, stands dismissed.
K.K.T.
Appeal dismissed.
[2013] 1 S.C.R. 1070
A
A
B
B
VIVEK KALRA
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 221 of 2007)
FEBRUARY 15, 2013.
[A.K. PATNAIK AND CHANDRAMAULI KR. PRASAD, JJ.]
C
D
E
F
Penal Code, 1860 – s. 302 – Murder – Circumstantial
evidence – Medical evidence that 2 of the 9 injuries on the
C deceased could not have been caused by the alleged weapon
of offence – Courts below on the basis of the motive and
circumstances of the case convicted the accused – On
appeal, held: Motive not proved – But absence of motive
would not affect the prosecution case where the chain of other
D circumstances establish beyond reasonable doubt that the
accused and accused alone committed the offence –
Circumstances of the present case prove the prosecution case
beyond reasonable doubt – As per the medical evidence,
majority of the injuries were stated to have been caused by
E the weapon of crime and were sufficient in the ordinary course
to cause death – The general good behaviour of the accused
has no nexus with the offence alleged – Conviction upheld.
The appellant-accused was prosecuted for killing 1314 years old boy. The prosecution case is based on
F circumstantial evidence. The motive for murder was that
the accused took revenge from his uncle by killing the
deceased (deceased being son of the uncle) because the
uncle as a guardian to him was not giving him an amount
of Rs. 80,000/ which was in a fixed deposit in his name.
G Trial court convicted him u/s. 302 IPC. High Court affirmed
the conviction.
In appeal to this Court, appellant-accused contended
that motive could not be said to have been proved; that
1070
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VIVEK KALRA v. STATE OF RAJASTHAN
1071
PW5 deposed that the accused had a good behaviour
and had no bad habit; and that as per the medical
evidence, injury Nos. 8 and 9 on the person of the
deceased could not have been caused by the weapon of
offence i.e. ‘dantli’, and therefore prosecution failed to
establish its case beyond reasonable doubt.
1072
A
B
Dismissing the appeal, the Court
HELD: 1. Where prosecution relies on circumstantial
evidence only, motive is a relevant fact and can be taken
into consideration under Section 8 of the Evidence Act,
1872 but where the chain of other circumstances
establish beyond reasonable doubt that it is the accused
and accused alone who has committed the offence and
this is one such case, the Court cannot hold that in the
absence of motive of the accused being established by
the prosecution, the accused cannot be held guilty of the
offence. [Para 6] [1076-D-E]
Ujjagar Singh v. State of Punjab (2007) 13 SCC 90:
2007 (13) SCR 653 – relied on.
2. In the instant case, the dead body of the deceased
was found on the morning of 08.06.1997 at around 8.00
a.m. and it is clear from the evidence of PW-5 and PW-6
that the appellant had taken the deceased in a scooter
between 7.00 p.m. and 9.00 p.m. on 07.06.1997 on the
pretext of getting a cassette. PW-28 has confirmed that
between 8.00 p.m. and 8.30 p.m. the appellant had come
to his cassette shop and taken the cassette. It is also
clear from the evidence of PW-5 and PW-6 that neither the
appellant nor the deceased returned on the evening of
07.06.1997. From the evidence of PW-26 and PW-7, it is
clear that the blood-stained dantli has been recovered
from the place of occurrence and the blacksmith, PW-13,
has confirmed that he had sold that particular dantli to the
appellant. [Para 7] [1076-G-H; 1077-A-B]
C
D
E
SUPREME COURT REPORTS
[2013] 1 S.C.R.
3. PW-22, the doctor has said in his evidence that
injury nos. 1 to 7 could have been caused by the dantli
and that the death of the deceased has been caused from
shock and haemorrhage with blood oozing from all the
injuries. The number and nature of the injuries together
B are enough in the ordinary course to cause death and have
been caused by dantli purchased by the appellant. Hence,
merely because the prosecution has not been able to prove
that injury Nos. 8 and 9 have been caused by dantli, it
cannot be held that it is not the appellant who has caused
C the death of the deceased. [Para 8] [1077-C-E]
A
4. The general good behaviour of the appellant and
the fact that he had no bad habit as stated by PW-5 have
no nexus with the offence alleged against the appellant
and are not relevant when other circumstances have
D established beyond reasonable doubt that it is the
appellant and the appellant alone who has committed the
murder of the deceased. [Para 9] [1078-B]
Vikramjit Singh alias Vicky v. State of Punjab 2006 (12)
E SCC 306: 2006 (9) Suppl. SCR 375 – relied on.
Case Law Reference:
2007 (13) SCR 653
F
F
Relied on
Para 6
2006 (9) Suppl. SCR 375 Relied on
Para 9
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 221 of 2007.
G
From the Judgment & Order dated 25.10.2004 of the High
Court
Judicature for Rajasthan at Jaipur Bench, Jaipur in
G
DBCRL No. 602 of 2002.
Vidya Dhar Gaur for the Appellant.
H
Sonia Mathur, Sushil Kumar Dubey, Pragati Neekhra for
the
Respondent.
H
VIVEK KALRA v. STATE OF RAJASTHAN
1073
The Judgment of the Court was delivered by
A.K. PATNAIK, J. 1. This is an appeal against the
judgment dated 25.10.2004 of the Rajasthan High Court, Jaipur
Bench, in D.B. Criminal Appeal No. 602 of 2002, maintaining
the conviction of the appellant under Section 302 of the Indian
Penal Code, 1860, (for short ‘the IPC’) and the sentence of life
imprisonment and fine of Rs.1,000/- for the offence.
2. The facts very briefly are that on 08.06.1997 at about
8.30 a.m., one Lal Singh, who was running a tea shop at Bypass Road, Sedariya Tiraha, lodged an FIR with Police Station
Adarsh Nagar, Ajmer. In the FIR, he stated that at about 8.00
a.m. on 08.06.1997 one truck driver told him that ahead of
Shantinath Dharm Kanta, on the wall of pulia (small bridge) one
boy has been murdered and laid down and he went there to
see and found that one boy, aged about 13-14 years, was lying
dead in a pool of blood and several persons have gathered
there. The police registered a case under Section 302, IPC,
and after investigation, the police filed a charge-sheet against
the appellant under Section 302, IPC.
3. At the trial, the prosecution did not examine any eyewitness to the murder of the deceased, but produced
circumstantial evidence to establish that the appellant had
committed the murder of the deceased and the trial court
convicted the appellant. On appeal, the High Court held in the
impugned judgment that after the death of his father the
appellant was living with his uncle, Gurcharan Kalra, and there
was a fixed deposit in his name of Rs.80,000/-, but as
Gurcharan Kalra decided to utilize the fixed deposit only at the
time of marriage of the appellant, in order to take revenge, the
appellant purchased a dantli, took Ankit Kalra, the son of
Gurcharan Kalra, in a Scooter on the evening of 07.06.1997
to get a cassette, and committed the murder of Ankit Kalra, left
the scene of incident, reached Jaipur and got himself admitted
to a hospital there on 08.06.1997 for treatment saying that he
has met with an accident.
1074
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E
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H
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SUPREME COURT REPORTS
4. Learned counsel for the appellant submitted that the
finding of the High Court in the impugned judgment on the
motive of the appellant to commit the offence is based on the
evidence of Gurcharan Kalra, PW-11, about the fixed deposit
of Rs.80,000/- of the appellant, which the appellant used to
demand, but from this evidence the High Court could not have
come to the conclusion that the motive of the appellant was to
take revenge by killing the deceased. He next submitted that
PW-5 has admitted in his evidence that the appellant had a
good behaviour and had no bad habit and, therefore, it is quite
probable that the appellant has not committed the offence. He
further submitted that PW-5 has clearly said that when he made
the enquiry from the appellant about the deceased Ankit, he had
told him that he had been assaulted by Munna and his 2 to 4
associates and caused injuries. He submitted that it is quite
possible that Munna may have killed the deceased and that the
appellant had not committed the murder. He further submitted
that the medical evidence of PW-22, Dr. B.K. Mathur, is clear
that the injury nos. 8 and 9 could not have been caused by dantli.
He submitted that since the prosecution case is that the
appellant used a dantli to cause the death of the deceased,
this medical evidence creates sufficient doubt on the
prosecution case.
5. Learned counsel appearing for the State, on the other
hand, supported the impugned judgment of the High Court by
relying on the following circumstances:
(i)
PW-6 has stated that in the evening of 07.06.1997
when his parents had gone to the market and he
was playing with the deceased, the appellant came
to their house and took the deceased with him
saying that they will come back after getting a
cassette, but thereafter the deceased did not come
back home.
(ii)
PW-5, the father of PW-6, has corroborated the
evidence of PW-6 that at about 7.00 p.m. in the
G
H
[2013] 1 S.C.R.
KAPADIA, J.]
VIVEK KALRA v. STATE OF RAJASTHAN
[A.K. PATNAIK, J.]
(iii)
(iv)
(v)
(vi)
1075
1076
SUPREME COURT REPORTS
[2013] 1 S.C.R.
evening of 07.06.1997, he and his wife had gone
to the market for shopping and when they came
back home at about 9.00 p.m., PW-6 told them that
the appellant took the deceased on a scooter on
the pretext of taking a cassette.
A
A
PW-28 has deposed that he used to work at V.K.
Video Movies, Plaza Road, and on 07.06.1997
between 8.00 p.m. and 8.30 p.m. a person by the
name of Vivek Kalra (the appellant) came to their
shop and took one cassette of picture Judwaa and
deposited Rs.100/- in advance and his name has
been entered in the register of the shop, but the
cassette was never received back.
B
Learned counsel for the State submitted that considering all
these circumstances established by the prosecution, there can
be no doubt that it is the appellant and the appellant only who
B has committed the murder of the deceased.
PW-7 is a witness to the panchnama of the dead
body of the deceased (Ext. P-6) which bears his
signatures at points A to B and he has said that one
dantli was lying on the ground near the pulia which
had a wooden handle and was taken possession
of by the police vide memo Ext. P7, which bears
his signatures at points A to B and he has also
stated that the dantli was blood- stained.
PW-13 is a blacksmith and he has said before the
Court that the appellant had come to purchase a
dantli from his shop and he agreed to pay a price
of Rs.110/- out of which he paid advance of Rs.10/
- to him and on the next day he came to the shop
and took the sharp edged dantli and he had paid
the balance of Rs. 100/- to him and the seized
Dantli was produced before PW-13 as Article-1
and PW-13 identified Article-1 as the one that was
purchased by the appellant from him.
C
D
E
6. We have considered the submissions of the learned
counsel for the parties and we agree with the learned counsel
for the appellant that from the evidence of PW-11 one could
C not hold that the appellant had committed the murder of the
deceased to take revenge on his uncle (PW-11), who had not
given him Rs.80,000/- kept in fixed deposit. We are, however,
of the opinion that where prosecution relies on circumstantial
evidence only, motive is a relevant fact and can be taken into
D consideration under Section 8 of the Indian Evidence Act, 1872
but where the chain of other circumstances establish beyond
reasonable doubt that it is the accused and accused alone who
has committed the offence and this is one such case the Court
cannot hold that in the absence of motive of the accused being
E established by the prosecution, the accused cannot be held
guilty of the offence. In Ujjagar Singh v. State of Punjab [(2007)
13 SCC 90], this Court observed:
F
F
G
G
PW-22, Dr. B.K. Mathur, has given his opinion that
he conducted the postmortem on the deceased on
H
09.06.1997 at 9.30 a.m. and that the injuries no. 1
to 7 could be caused by the dantli.
“It is true that in a case relating to circumstantial evidence
motive does assume great importance but to say that the
absence of motive would dislodge the entire prosecution
story is perhaps giving this one factor an importance which
is not due and (to use the cliché) the motive is in the mind
of the accused and can seldom be fathomed with any
degree of accuracy.”
7. In this case, the dead body of Ankit was found on the
morning of 08.06.1997 at around 8.00 a.m. and it is clear from
the evidence of PW-5 and PW-6 that the appellant had taken
Ankit in a scooter between 7.00 p.m. and 9.00 p.m. on
H 07.06.1997 on the pretext of getting a cassette. PW-28 has
VIVEK KALRA v. STATE OF RAJASTHAN
[A.K. PATNAIK, J.]
1077
confirmed that between 8.00 p.m. and 8.30 p.m. the appellant
had come to his cassette shop and taken the cassette of the
film Judwaa. It is also clear from the evidence of PW-5 and PW6 that neither the appellant nor the deceased returned on the
evening of 07.06.1997. From the evidence of PW-26 and PW7, we also find that the blood-stained dantli has been recovered
from the place of occurrence and the blacksmith, PW-13, has
confirmed that he had sold that particular dantli to the appellant
at a price of Rs.110/-.
8. Dr. B.K. Mathur, PW-22, has said in his evidence that
injury nos. 1 to 7 could have been caused by the dantli and that
the death of the deceased has been caused from shock and
haemorrhage with blood oozing from all the injuries. We find
that injury nos. 1, 2, 3, 4, 5, 6 and 7 are cut wounds on the left
of the face, left of the neck, back of the neck, on the left muscles
and specula bone intestine and on the left of the waist. The
number and nature of these injuries together are enough in the
ordinary course to cause death and have been caused by dantli
purchased by the appellant. Hence, merely because the
prosecution has not been able to prove that injury nos. 8 and 9
have been caused by dantli, we cannot hold that it is not the
appellant who has caused the death of the deceased.
9. It is true that PW-5 has stated that the appellant had a
good behaviour and had no bad habit. Section 8 of the Indian
Evidence Act, 1872, however, provides that the conduct of any
person an offence against whom is the subject of any
proceeding, is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact, and whether it
was previous or subsequent to it. Hence, any behaviour or
conduct of the appellant would be relevant if it had nexus with
the offence under Section 302 alleged to have been committed
by him. This Court has held in Vikramjit Singh alias Vicky v.
State of Punjab [2006 (12) SCC 306] at page 314:
“…..Conduct of an accused must have nexus with the
crime committed. It must form part of the evidence as
1078
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C
A
E
F
G
H
[2013] 1 S.C.R.
regards his conduct either preceding, during or after the
commission of the offence as envisaged under Section 8
of the Evidence Act….”
The general good behaviour of the appellant and the fact that
he had no bad habit have no nexus with the offence alleged
B
against the appellant and are not relevant when other
circumstances have established beyond reasonable doubt that
it is the appellant and the appellant alone who has committed
the murder of the deceased.
C
10. In the result, we find no merit in the appeal and we
dismiss the same.
K.K.T.
D
SUPREME COURT REPORTS
Appeal dismissed.
1080
[2013] 1 S.C.R. 1079
SANAULLAH KHAN
v.
STATE OF BIHAR
(Criminal Appeal Nos. 94 - 95 of 2011)
FEBRUARY 15, 2013
A
B
[A.K. PATNAIK AND MADAN B. LOKUR, JJ.]
Penal Code, 1860:
ss. 302 and 201 – Triple murder – Circumstantial
evidence – Conviction and sentence of death awarded by trial
court confirmed by High Court – Held: Chain of circumstances
proved by prosecution establishes beyond reasonable doubt
that it was the appellant who had eliminated three persons –
Therefore, conviction of appellant u/s 302 for each of the three
offences of murder is upheld – However, as regards the
sentence, motive for crime was not established – Further,
though deceased persons appear to have been brutally killed,
what exactly happened leading to their murder by appellant
is not known – There is no evidence to establish the gravest
case of extreme culpability of appellant and there is also no
evidence to establish his circumstances – Therefore,
imprisonment for life for each of the three offences of murder
and the sentences to run consecutively would meet the ends
of justice – Ordered accordingly – Code of Criminal
Procedure, 1973 – s.31 – Sentence/Sentencing – Criminal
law – Motive.
The appellant and another were prosecuted for
committing offences punishable u/ss. 364/34, 302, 120-B
and 201 IPC. The prosecution case was that regarding
the quality of milk supplied by the appellant at the tea stall
of ‘R’ the father of the informant, there arose a dispute
between the two. On 16.12.2002 at about 8 p.m. ‘A’, the
worker of the appellant came at the tea stall and told ‘R’
1079
C
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A that the appellant was calling him. ‘R’ went along with ‘A’.
After some time ‘A’ again came to the tea stall and said
that the appellant was calling ‘S’, the other son of ‘R’. ‘S’
also accompanied ‘A’. However, both ‘R’ and ‘S’ did not
return till the following morning. On the basis of the
B ‘fardbeyan’ given by the informant, an FIR was registered
for the offence of kidnapping. During the investigation
three dead bodies, of ‘R’, ‘S’ and ‘A’, were recovered from
the ‘Khatal (a cattle shed)’ of the appellant. The trial court
convicted the appellant and sentenced him to death. The
C other person was acquitted. The High Court confirmed
the conviction as also the death sentence.
Partly allowing the appeals, the Court
D
E
F
G
HELD: 1.1. In the instant case, three circumstances
have
been established by the prosecution. Firstly, ‘A’
D
came to the tea stall on 16.12.2002 at about 8.00 p.m. and
told ‘R’ that he was being called by the appellant and ‘R’
went with ‘A’ and within an hour thereafter ‘A’ again came
to the tea stall and told ‘S’ that he was being called by
E the appellant and ‘S’ also went along with ‘A’; secondly,
on 17.12.2002 the dead bodies of the three deceased
were recovered from a room in occupation of the
appellant; and thirdly, pursuant to the information
divulged by the appellant, the incriminating materials
F were recovered by the I.O. Thus, the chain of these three
circumstances establishes beyond reasonable doubt that
it was the appellant who had eliminated the three
deceased persons. Therefore, the 5 golden principles laid
down in Sharad Birdhichand Sarda* apply in the instant
case and the only hypothesis that the Court can conclude
G
from the chain of three circumstances is that it is the
appellant who has committed the murder of the three
deceased persons. [Para 17-18] [1091-E-H; 1092-D-E]
*Sharad Birdhichand Sarda vs. State of Maharashtra
H
H
SANAULLAH KHAN v. STATE OF BIHAR
1081
1082
1985 (1) SCR 88 = (1984) 4 SCC 116 – relied on
A
1.2. The evidence of PW4 may create some doubt
with regard to the motive of the appellant to kill ‘R’ and
?S?. Where other circumstances lead to the only
hypothesis that the accused has committed the offence,
the court cannot acquit the accused of the offence merely
because the motive for committing the offence has not
been established in the case. [Para 19] [1093-B-C]
B
Ujjagar Singh v. State of Punjab 2007 (13) SCR 653 =
(2007) 13 SCC 90 – relied on.
C
Javed Masood and Another vs. State of Rajasthan 2010
(3) SCR 236 = (2010) 3 SCC 538; and Mukhtiar Ahmed
Ansari vs. State 2005 (3) SCR 797 = (2005) 5 SCC 258 –
cited.
2.1. As regards the sentence, motive for the appellant
to commit the murder of three persons has not been
established. There is also no eyewitness to the manner
in which the appellant committed the murder of three
persons and the culpability of the appellant has been
established only by a chain of three circumstances
established by the prosecution. The finding of the High
Court, therefore, that either ‘R’ or ‘S’ had to undergo the
trauma of watching the father or the son being killed first
in front of the other is a pure surmise. What exactly
happened leading to the murder of three persons by the
appellant is not known, but what appears from the post
mortem reports is that the three deceased persons were
brutally killed by the appellant. Brutality would be a
relevant factor, but how the same did take place is also
a relevant and necessary material to be considered while
deciding whether to award life imprisonment or death for
the offence of murder. As has been held in Bachan Singh’s
case, the extreme penalty of death can be inflicted only
in gravest cases of extreme culpability and in making
D
E
F
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A choice of the sentence, in addition to the circumstances
of the offence, due regard must be paid to the
circumstances of the offender also. In the instant case,
there is no evidence to establish the gravest case of
extreme culpability of the appellant and there is also no
B evidence to establish the circumstances of the appellant.
[Para 22-23] [1094-D-H; 1095-A-D-F]
C
Panchhi & Ors. v. State of U.P. 1998 (1) Suppl. SCR 40
= AIR 1998 SC 2726; and Bachan Singh vs. State of
Punjab 1983 (1) SCR 145 = 1980 AIR 898 – referred to
2.2. However, there is sufficient evidence to establish
the culpability of the appellant for three offences of
murder as defined in s. 300, IPC, and for each of the three
offences of murder, he is liable u/s. 302, IPC for
D imprisonment for life if not the extreme penalty of death.
Section 31(1), Cr. P.C. empowers the court to inflict
sentences of imprisonment for more than one offence to
run either consecutively or concurrently. The term
“imprisonment” in s. 31 Cr.P.C. includes the sentence for
E imprisonment for life. Considering the facts of the case,
this Court is of the opinion that the sentences of
imprisonment for life should not run concurrently but
consecutively and such punishment of consecutive
sentence of imprisonment for the triple murder committed
F by the appellant will serve the interest of justice. Ordered
accordingly. [Paras 24 and 25] [1095-F-G; 1096-B-D]
Kamalanantha & Ors. vs. State of T. N. 2005 (3) SCR
182 = (2005) 5 SCC 194 – relied on
G
G
Macchhi Singh vs. State of Punjab 1983 (3) SCR 413 =
(1983) 3 SCC 470 – cited.
Case Law Reference:
1983 (3) SCR 413
H
H
cited
para 5
1083
SANAULLAH KHAN v. STATE OF BIHAR
2010 (3) SCR 236
cited
para 10
1985 (1) SCR 88
relied on
`Para 18
2005 (3) SCR 797
cited
para 19
2007 (13) SCR 653
relied on
para 19
1983 (1) SCR 145
relied on
para 22
1998 (1) Suppl. SCR 40 referred to
para 22
2005 (3) SCR 182
para 24
relied on
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 94-95 of 2011.
From the Judgment & Order dated 16.12.2009 of the High
Court of Judicature at Patna in Death Reference Case No. 1
of 2007 with Criminal Appeal (DB) No. 379 of 2007.
1084
A
B
C
D
Amarendra Sharan, Irshad Ahmad, Sanchit G., Somesh
Chandra Jha, Dhruv Pal for the Appellant.
Samir Ali Khan, Gopal Singh for the Respondent.
E
The Judgment of the Court was delivered by
A.K. PATNAIK, J. 1. This is an appeal against the
judgment dated 16.12.2009 of the Patna High Court in Death
Reference Case No. 1 of 2007 and Criminal Appeal (DB) No.
379 of 2007.
F
FACTS:
2. The facts very briefly are that a fardbeyan was lodged
on 17.12.2002 by one Sanju Kumar (hereinafter referred to as
Informant), resident of Village Mathura, P.S. Bidupur, District
Vaishali. In the fardbeyan, it was stated: Father of the informant,
namely Ravindra Prasad, was running a tea stall near the
Eastern gate of the GPO. For the tea stall he required about
25 Litres of milk everyday and this milk was being supplied by
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A Sanaullah Khan, the appellant herein, for about a month.
Sanaullah Khan started mixing water with the milk and the
customers of the tea stall started making complaints about the
quality of tea. On 02.12.2002 at about 2.00 p.m. Sanaullah Khan
along with Md. Hamid and Arvind came to the tea stall and
B demanded the dues for the supply of milk. After calculation it
was found that the dues amounted to Rs. 1,000/- and Ravindra
Prasad gave Sanauallah Khan Rs. 500/- and told him that the
rest of the amount will be paid later. Ravindra Prasad, however,
informed Sanaullah Khan that the milk supplied by him was not
C up to the mark and therefore he will no longer purchase milk
from his Khatal. Sanaullah Khan got annoyed and told him that
he will not allow him to run the tea stall. Ravindra Prasad
retorted that he had seen many persons like him at his tea stall.
Sanaullah Khan said that he will have to face serious
consequences and that he will teach him a lesson within two
D
to four days. Thereafter, Sanaullah Khan, Hamid and Arvind
went away. On 16.12.2002 at about 8.00 p.m. Arvind, who was
working with Sanaullah Khan came and told Ravindra Prasad
that his master was calling him for some urgent work and
Ravindra Prasad went along with Arvind and did not return for
E an hour. Arvind again came and told his brother Sunny Kumar,
who was in the tea stall, that his master was calling him and
that Ravindra Prasad was in the Khatal. Sunny Kumar also
accompanied Arvind. Ravindra Prasad and Sunny Kumar,
however, did not return till the next morning. The Informant
F became suspicious and started searching for his father and his
brother. He went to the Khatal of the appellant, but found it to
be closed. He suspected that the appellant, Hamid and Arvind
had kidnapped his father and younger brother.
3. The fardbeyan given by the Informant was registered as
FIR No.451 of 2002 at Kotwali, P.S. for the offence of
kidnapping under Section 364 read with Section 34 of the
Indian Penal Code, 1860, (for short ‘the IPC’). When
investigation was done by the police, three dead bodies were
H found concealed in husk in a room on the eastern verandah of
G
SANAULLAH KHAN v. STATE OF BIHAR
[A.K. PATNAIK, J.]
1085
Pearl Cinema and the dead bodies were seized and a seizure
list was prepared in which Parimal Kumar and Baleshwar Ram
signed as witnesses. Two of the dead bodies were identified
by the informant as those of Ravindra Prasad and Sunny
Kumar. Inquest reports and postmortem reports of the dead
bodies were prepared. Later the third body was identified to
be that of Arvind by Ramanand Ram, father of Arvind. The
appellant was arrested and pursuant to the confession of the
appellant, the shoes, sandal and gamchha of the three
deceased persons, a rope, a small plastic bag and a knife
were recovered from the garbage situated in north-east of
Khatal and were seized and Parimal Kumar and Baleshwar
Ram signed the seizure list. Offences under Sections 302,
120B and 201 IPC were added and a charge-sheet was filed
against the appellant and Hamid and the case was committed
to the Court of Sessions.
4. At the trial, altogether eight witnesses were examined.
The Trial Court held that the chain of circumstances is complete
and does not leave any reasonable ground for conclusion
consistent with the innocence of the appellant and it goes to
show that in all human probabilities, the offences must have
been committed by the appellant. The trial court, however,
acquitted Hamid of the charges. After hearing on the question
of sentence, the trial court took the view that the appellant
should be hanged by the neck till death as he had killed three
helpless persons brutally after premeditation and if he is allowed
to continue to live in the present society, he will be a threat to
his co-human beings and this was one of those rarest of rare
cases in which the appellant deserves the capital punishment
of death. The trial court accordingly referred the sentence of
death to the High Court.
5. The appellant also filed a criminal appeal against the
judgment of the trial court. On 03.07.2006, the High Court
directed recording of additional evidence on two points in
exercise of its powers under Section 391 of the Criminal
1086
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A Procedure Code, 1973 (for short ‘the Cr.P.C.’). Pursuant to the
direction of the High Court the confessional statement of the
appellant was marked as an exhibit through the investigating
officer (PW-8) after his recall by the trial court and the knife
which was seized and listed as item 10 in the seizure list was
B also marked as an exhibit. Thereafter, the High Court heard the
appeal and held that the prosecution has been able to bring
home the guilt of the appellant with regard to the murder of the
3 deceased persons by exhibiting four circumstances and
these are (i) that the appellant was selling milk to the deceased
C Ravindra Prasad and Ravindra Prasad stopped buying the milk
(ii) the appellant summoned the deceased Ravindra Prasad
and deceased Sunny Kumar through the deceased Arvind who
was working with the appellant (iii) the dead bodies of the three
deceased persons were recovered from the room belonging
to the appellant and (iv) the weapons used in the murder of
D
three deceased persons were recovered pursuant to the
confession of the appellant. The High Court also confirmed the
death sentence of the appellant saying that the tests laid down
by this Court in Macchhi Singh vs. State of Punjab [(1983) 3
SCC 470] regarding the cases in which death penalty should
E be imposed were present in the facts and circumstances of the
present case. Aggrieved by the judgment of the High Court, the
appellant has filed this appeal.
F
CONTENTIONS OF THE LEARNED COUNSEL FOR THE
PARTIES:
6. Mr. Amarendra Sharan, learned senior counsel
appearing for the appellant, submitted that there is no eye
witness to the murder of the three deceased persons and the
finding of the High Court that the prosecution has been able to
G
establish the guilt of the appellant beyond reasonable doubt are
based on 4 circumstances is not correct.
7. Mr. Sharan relied on the evidence of PW-3 to the effect
that Arvind had a dairy (khatal) at Old Bakri Bazar and also on
H the evidence of PW-4 that the appellant never had any business
SANAULLAH KHAN v. STATE OF BIHAR
[A.K. PATNAIK, J.]
1087
of milk but had a business of bakri (goat). He submitted that
the first circumstance which was the motive for the appellant
to kill the deceased Ravindra Prasad and Sunny Kumar is itself
not established in this case.
8. Mr. Sharan submitted that there is absolutely no
evidence to establish the second circumstance that the
appellant summoned the deceased persons Ravindra Prasad
and Sunny Kumar. He submitted that the trial court and the High
Court has relied on the evidence of PW-6 to hold that the
appellant summoned the deceased persons Ravindra Prasad
and Sunny Kumar through his servant Arvind but PW-6 was not
present at the tea stall. He submitted that the evidence of PW7 would show that PW-6 was in the house of PW-7 on
16.12.2002 and remained there till the morning of 17.12.2002
and thus PW-6 was not present at the tea stall on 16.12.2002
when Arvind is alleged to have told Ravindra Prasad and Sunny
Kumar that they have been summoned by the appellant.
9. Mr. Sharan next submitted that the third circumstance
that dead bodies were recovered from the room belonging to
the appellant is also not proved in as much as PW-7 has said
in his evidence that the dead bodies were in fact recovered in
front of the Pearl Cinema. He submitted that the two seizure
witnesses PW-1 and PW-2 have clearly said that recovery of
the dead bodies and the weapon with which the offence was
committed and other incriminating materials were not made in
their presence. He argued that Rajender Tiwari, the officer who
made the recoveries has also not been examined. He
submitted that the recoveries were made from the pile of the
garbage and not from the drain by the side of Sona Medical
Hall as is alleged to have been stated by the appellant in his
confession. He submitted that, therefore, the fourth
circumstance that the incriminating materials were recovered
pursuant to the confession of the appellant is also not
established.
1088
A
B
C
D
E
F
SUPREME COURT REPORTS
[2013] 1 S.C.R.
10. Mr. Sharan relied on Sharad Birdhichand Sarda vs.
State of Maharashtra [(1984) 4 SCC 116] in which this Court
has laid down the tests to be satisfied before the court convicts
an accused on the basis of only circumstantial evidence. He
argued that in this case these tests are not satisfied and
B therefore the conviction of the appellant by the trial court as
maintained by the High Court should be set aside. He also
cited the decision of this Court in Javed Masood and Another
vs. State of Rajasthan [(2010) 3 SCC 538] to argue that the
evidence of prosecution witnesses was binding on the
C prosecution. He submitted that the evidence of PW3, PW4 and
PW7 relied upon by the appellant to establish his innocence,
therefore, is binding on the prosecution.
A
11. Mr. Samir Ali Khan, learned counsel appearing for the
State, on the other hand, submitted that the evidence of PW-6
D is consistent and if the evidence of PW-6 is considered along
with the recovery of the dead bodies from the room belonging
to the appellant as well as the recovery of the weapons and
other incriminating materials pursuant to the confessional
statement of the appellant marked Ex.1, the Court will arrive at
E the only conclusion that it is the appellant who has committed
the murder of three deceased persons. He submitted that
though the appellant retracted his confession before the trial
court when his statement under Section 313 of the Cr.P.C. was
recorded, the appellant has not led any evidence to establish
F his innocence. He submitted that the trial court and the High
Court, therefore, have rightly held that the prosecution has been
able to prove the guilt of the appellant beyond reasonable
doubt.
FINDINGS OF THE COURT:
G
G
H
12. The evidence of PW-6 on which both the trial court and
the High Court have relied on is clear that on 16.12.2002 at
about 8.00 p.m. when he was present at the tea stall, Arvind,
servant of the appellant came and called Ravindra Prasad
H saying that the appellant wanted to talk to him on certain issues
SANAULLAH KHAN v. STATE OF BIHAR
[A.K. PATNAIK, J.]
1089
and that Ravindra Prasad left with Arvind. PW-6 has also stated
in his evidence that after about an hour Arvind came again and
told that the appellant was calling Sunny also and Sunny went
along with Arvind and thereafter PW-6 closed the shop and
went to his house. No suggestion has also been made to PW6 in his cross-examination by the defence that PW-6 was not
present at the tea stall on 16.12.2002. Mr. Sharan, however,
referred to the evidence of PW-7 that PW-6 has come to his
house on 16.12.2002 and stayed at his house at Patna itself
in the night and left in the morning but PW-7 has not stated the
time when PW-6 had come to his house on 16.12.2002. Hence,
the evidence of PW-7 does not contradict the evidence of PW6 that he was at the tea stall at 8.00 p.m. on 16.12.2002 when
Arvind told Ravindra Prasad and Sunny Kumar that they were
being called by the appellant.
13. There is also evidence to show that the dead bodies
of Ravindra Prasad, Sunny Kumar and Arvind were recovered
from the Khatal of the appellant. Though, the seizure witnesses
PW-1 and PW-2 stated that nothing was seized in their
presence, PW-6 has stated that when the Khatal (cattle shed)
of the appellant was opened, he saw some splashes of blood
and the dead bodies were found in another room and these
dead bodies were of Ravindra Prasad, Sunny Kumar and
Arvind. He has also stated that the inquest reports of all the
three dead bodies were prepared at the place of occurrence
itself and he put his signature on it and all the three signatures
are his and these have been marked as Ex.1/5, 1/6 and 1/7. In
cross examination by the defence, PW-6 has denied the
suggestion that the dead bodies had not been recovered in his
presence and that the inquest reports were not prepared in his
presence and that he had not put his signatures on the inquest
reports.
14. Mr. Sharan relied on the evidence of PW-7 to submit
that the three dead bodies were not recovered from the Khatal
but we find that PW-7 has also stated that the three dead
1090
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A bodies were recovered from the room of Pearl Cinema where
the Khatals of the appellant were situated. PW-7 has, however,
admitted in cross-examination on behalf of the defence that he
had not seen with his own eyes as to from which place the dead
bodies were recovered. Thus the evidence of PW-7 may not
B establish the place from which the dead bodies were recovered
but the evidence of PW-6 clearly proves that the bodies were
recovered from a room in the verandah of Pearl Cinema, which
was in occupation of the appellant and this evidence of PW-6
has not been contradicted by the evidence of PW-7.
C
15. PW-8, the I.O. who inspected the place of occurrence
has stated in his deposition that Pearl Cinema is situated to
the east of the tea stall in Budh Marg and was closed for a long
period and there is a verandah to the east of the cinema hall
which is divided into many rooms and the rooms situated to
D the north is in possession of the appellant. He has further stated
in his evidence that in the western portion of the floor of this
room, blood was found in huge quantity which had already
clotted and the stains of blood were found on the western wall
also. PW-8 has further stated that to the north of this room and
E near the door there is a vacant place which is fitted with the
grill gate and to the north of this place there is another room in
which there is heap of straw and the three dead bodies were
found concealed in this very heap of husk which were recovered
and the husk was found sticking to the injuries on the dead
F bodies of the deceased persons. PW-8 has further stated that
the three dead bodies were recovered from the place of
occurrence itself. He has also stated that Rajender Tiwari, the
SI of Police prepared the inquest reports of all the three dead
bodies and he put his signatures on all the three inquest reports
G which have been marked as Ex.5, 5/1 and 5/2 respectively.
H
16. PW-8 has also stated in his evidence that in course
of investigation, after the appellant had surrendered in court,
he took him on police remand and in course of investigation
he gave his confessional statement, and pursuant to information
SANAULLAH KHAN v. STATE OF BIHAR
[A.K. PATNAIK, J.]
1091
the appellant divulged, he seized two pair of blood stained
plastic shoes, a blood stained white gamcha (towel of Indian
type), a blood stained chequerred gamcha, a plastic rope of
green colour, a blood stained piece of plastic, a blood stained
old sack, a small sack of blood, a blood stained green small
plastic sack, a blood stained small container made of plastic,
a knife of 16 inches used for slaughtering goat. PW-8 has also
stated that a seizure list of all these articles which were
recovered were prepared by Rajender Tiwari and he had
identified the writing and signature of Rajender Tiwari and the
seizure list is marked as Ex.6/1. Section 27 of the Indian
Evidence Act, 1872, states that when any fact is deposed to
as discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved. Hence, the information received
from the appellant pursuant to which the aforesaid incriminating
materials were recovered is not only admissible but also has
been proved.
17. Thus, three circumstances have been established by
the prosecution. The first circumstance established by the
prosecution is that Arvind came to the tea stall on 16.12.2002
at about 8.00 p.m. and told Ravindra Prasad that he was being
called by the appellant and Ravindra Prasad went with Arvind
and within an hour thereafter Arvind again came to the tea stall
and told Sunny Kumar that he was being called by the appellant
and Sunny Kumar went along with Arvind. The second
circumstance that has been established by the prosecution is
that on 17.12.2002 the dead bodies of Ravindra Prasad, Sunny
Kumar and Arvind were recovered from a room in occupation
of the appellant in the verandah of Pearl Cinema. The third
circumstance which has been established by the prosecution
is that pursuant to the information divulged by the appellant the
incriminating materials were recovered by the I.O. These three
chain of circumstances establish beyond reasonable doubt that
1092
A
B
C
C
D
D
E
E
G
H
[2013] 1 S.C.R.
A it was the appellant who had eliminated the three deceased
persons.
B
F
SUPREME COURT REPORTS
18. In Sharad Birdhichand Sarda vs. State of Maharashtra
(supra), cited by Mr. Sharan, the following 5 golden principles
were laid down for a proof of guilt on the basis of circumstantial
evidence (i) the circumstance from which the conclusion of the
guilt is to be drawn should be fully established; (ii) the facts so
established should be consistent only with the hypothesis of the
guilt of the accused; (iii) the circumstances should be of a
conclusive nature and tendency; (iv) they should exclude every
possible hypothesis except the one to be proved, and (v) there
must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
Considering the chain of three circumstances which have been
fully established by the prosecution, the 5 golden principles laid
down in Sharad Birdhichand Sarda vs. State of Maharashtra
(supra) apply in this case and the only hypothesis that we can
conclude from the chain of three circumstances is that it is the
appellant who has committed the murder of the three deceased
persons.
19. In Javed Masood and Another vs. State of Rajasthan
(supra) cited by Mr. Sharan, this Court relying on its earlier
F decision in Mukhtiar Ahmed Ansari vs. State [(2005) 5 SCC
258] has held that it was open to the defence to rely on the
evidence led by the prosecution. In this case, we have found
that the evidence of PW-7 does not contradict the evidence of
PW-6 and does not support the defence. It, however, appears
from the evidence of PW-3 that it was Arvind who had a Khatal
G
at Old Bakri Bazar. We have perused the evidence of PW-3
and we do not find that PW-3 has stated that the appellant did
not have a Khatal on the verandah of the Pearl Cinema. Of
course, PW4 has stated that the appellant runs business of
bakri (sheep goat) and never ran milk business but in the
H
SANAULLAH KHAN v. STATE OF BIHAR
[A.K. PATNAIK, J.]
1093
evidence of PW-4 there is nothing to show that the room on
the verandah of Pearl Cinema was not in the occupation of the
appellant. At best the defence can rely on PW-4 to argue that
the appellant did not carry on milk business and therefore the
motive for committing the offence did not exist. The evidence
of PW4 may thus create some doubt with regard to the motive
of the appellant to kill Ravindra Prasad and Sunny Kumar.
Where other circumstances lead to the only hypothesis that the
accused has committed the offence, the Court cannot acquit
the accused of the offence merely because the motive for
committing the offence has not been established in the case.
In Ujjagar Singh v. State of Punjab [(2007) 13 SCC 90, this
Court has held:
“It is true that in a case relating to circumstantial evidence
motive does assume great importance but to say that the
absence of motive would dislodge the entire prosecution
story is perhaps giving this one factor an importance which
is not due and (to use the cliche) the motive is in the mind
of the accused and can seldom be fathomed with any
degree of accuracy”.
1094
A
B
C
[2013] 1 S.C.R.
A
21. While confirming the death sentence, the High Court
has held in the impugned judgment that the present case clearly
falls under the yardstick laid down in Machhi Singh & Ors. v.
State of Punjab [AIR 1983 SC 957]. The reasons, which
weighed with the High Court in confirming the death sentence,
B are that the appellant did not hesitate to take away three lives
for petty monetary gain; the tender age of Sunny was of no
concern to him; either Ravindra or Sunny had to undergo the
trauma of watching the father or the son being killed first in front
of the other and their hands and feet were tied and a butchering
C knife was used to cause multiple murders and the nature of the
assault upon the deceased Arvind to do away with all evidence
whatsoever was dastardly.
D
D
E
E
F
F
F
G
H
H
SENTENCE:
20. On the question of sentence, the trial court has
recorded special reasons under Section 354(3) Cr.P.C. for
awarding death sentence to the appellant. The trial court has
held that the appellant has killed Ravindra Prasad and Sunny
Kumar on an issue of petty amount and the appellant has also
not spared his servant, Arvind. The trial court has also found
from the post mortem reports of the three deceased persons
that they have been brutally murdered after premeditation. The
trial court has further held that if the appellant is allowed to
continue to live in society, he will be a great threat to his cohuman beings. For the aforesaid reasons, the trial court took
the view that the appellant should be awarded the death
sentence.
SUPREME COURT REPORTS
22. We have, however, noticed that the motive for the
appellant to commit the murder of three persons has not been
established in this case. Hence, one of the reasons given by
the trial court and the High Court that the murders were
committed for petty monetary gain is not substantiated by
evidence. We have also found that there is no eyewitness to
the manner in which the appellant committed the murder of three
persons and the culpability of the appellant has been
established only by a chain of three circumstances established
by the prosecution. The finding of the High Court, therefore, that
either Ravindra or Sunny had to undergo the trauma of watching
the father or the son being killed first in front of the other is a
pure surmise. Similarly, the finding of the High Court that the
hands and feet were tied and a butchering knife was used to
cause multiple murders is an inference drawn by the High Court
from the post mortem report. What exactly happened leading
to the murder of three persons by the appellant is not known,
but what appears from the post mortem reports is that the three
deceased persons were brutally killed by the appellant. It has,
however, been held by this Court in Subhash Ramkumar Bind
@ Vakil & Anr. v. State of Maharashtra [AIR 2003 SC 269]
that brutality would be a relevant factor but how the same did
take place is also a relevant and necessary material to be
SANAULLAH KHAN v. STATE OF BIHAR
[A.K. PATNAIK, J.]
1095
considered while deciding whether to award life imprisonment
or death for the offence of murder. Moreover, in Panchhi & Ors.
v. State of U.P. [AIR 1998 SC 2726] a three-Judge Bench of
this Court has held:
“Brutality of the manner in which a murder was perpetrated
may be a ground but not the sole criterion for judging
whether the case is one of the “rarest of rare cases” as
indicated in, Bachan Singh’s case, (AIR 1980 SC 898),
in a way every murder is brutal, and the difference between
one from the other may be on account of mitigating or
aggravating features surrounding the murder.”
23. The trial court, however, has held that as the appellant
has eliminated the three deceased, if the appellant is allowed
to continue to live in society, he will be a great threat to his cohuman beings. This reason for awarding the extreme penalty
of death is based on an apprehension and may not be enough
to impose the extreme penalty of death. As has been held by
the majority of four Judges in Bachan Singh’s case (supra), the
extreme penalty of death can be inflicted only in gravest cases
of extreme culpability and in making choice of the sentence, in
addition to the circumstances of the offence, due regard must
be paid to the circumstances of the offender also. In the present
case, we do not find evidence to establish the gravest case of
extreme culpability of the appellant and we do not also have
evidence to establish the circumstances of the appellant.
24. We have, however, sufficient evidence to establish the
culpability of the appellant for three offences of murder as
defined in Section 300, IPC, and for each of the three offences
of murder, the appellant is liable under Section 302, IPC for
imprisonment for life if not the extreme penalty of death. Section
31(1) of the Cr.P.C. provides that when a person is convicted
at one trial of two or more offences, the Court may, subject to
the provisions of Section 71 of the Indian Penal Code, sentence
him for such offences, to the several punishments prescribed
therefor which such Court is competent to inflict; such
1096
A
B
C
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A punishments when consisting of imprisonment to commence
the one after the expiration of the other in such order as the
Court may direct, unless the Court directs that such
punishments shall run concurrently. Thus, Section 31(1) of the
Cr. P.C. empowers the Court to inflict sentences of
B imprisonment for more than one offence to run either
consecutively or concurrently. In Kamalanantha & Ors. vs. State
of T.N. [(2005) 5 SCC 194], this Court has held that the term
“imprisonment” in Section 31 of the Cr. P.C. includes the
sentence for imprisonment for life. Considering the facts of this
C case, we are of the opinion that the appellant is liable under
Section 302, IPC for imprisonment for life for each of three
offences of murder under Section 300, IPC and the
imprisonments for life should not run concurrently but
consecutively and such punishment of consecutive sentence of
imprisonment for the triple murder committed by the appellant
D
will serve the interest of justice.
25. In the result, we maintain the conviction of the appellant
for three offences of murder under section 302, IPC, but convert
the sentence from death to sentence for rigorous imprisonment
E for life for each of the three offences of murder and direct that
the sentences of imprisonment for life for the three offences will
run consecutively and not concurrently. Thus, the appeals are
allowed only on the question of sentence, and dismissed as
regards conviction.
F
R.P.
Appeals allowed
1098
[2013] 1 S.C.R. 1097
STATE OF MADHYA PRADESH
v.
GIRIRAJ DUBEY
(Criminal Appeal No. 319 of 2013)
FEBRUARY 19, 2013
A
B
HELD: 1.1. The High Court has only stated that the
trial court, after appreciation of the evidence, had found
that the prosecution had failed to establish the offence
against the respondent and, therefore, the judgment of
B
acquittal did not suffer from infirmity. Such an order
cannot be said to be a reasoned order. On the contrary,
it is irrefragably cryptic and clearly shows non-application
of mind. [para 5] [1100-H; 1101-A-B]
C
C
Code of Criminal Procedure, 1973:
ADMINISTRATION
[2013] 1 S.C.R.
A
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
s.378(3) – Appeal against acquittal – High Court
declining to grant leave – Held: Order of High Court is
irrefragably cryptic and clearly shows non-application of mind
– Despite the clear law laid down by Supreme Court, High
Courts, while declining to grant leave against judgments of
acquittal, do not indicate reasons for formation of such an
opinion – Judgments of Supreme Court, being binding on all
courts, are required to be followed in letter and spirit – That
is the constitutional mandate and that is the judicial discipline
– Order passed by High Court set aside and matter remitted
to it to pass a cogent and reasoned order relating to grant or
refusal of leave – Constitution of India, 1950 – Art. 141 –
Judicial discipline.
SUPREME COURT REPORTS
D
E
OF JUSTICE:
Criminal justice – Appeal against acquittal – Held: Every
crime is an offence against the collective as a whole – It is
the duty of courts to see that justice is done to the sufferer of
the crime which, eventually, mitigates the cause of the
collective and satisfies the cry of society against crime.
F
The instant appeal was filed by the State against the
order of the High Court declining to grant leave to the
State to file appeal against the judgment of acquittal
passed by the trial court.
G
1097
H
Allowing the appeal, the Court
1.2. Despite the clear law laid down by this Court,
High Courts, while declining to grant leave against the
judgments of acquittal, do not indicate reasons for
formation of such an opinion. The order has to reflect
proper application of mind and such reflection of
D application of mind has to be manifest from the order
itself. It should be kept in mind that the judgments of this
Court, being binding on all courts, are required to be
followed in letter and spirit. That is the constitutional
mandate and that is the judicial discipline. Consequently,
E the order passed by the High Court is set aside and the
matter is remitted to it to pass a cogent and reasoned
order relating to grant or refusal of leave. [para 12-13]
[1104-C-D, G; 1105-A-C]
State of Maharashtra v. Vithal Rao Pritirao Chawan
(1981) 4 SCC 129; State of Orissa v. Dhaniram Luhar 2004
(2) SCR 68 = (2004) 5 SCC 568; State of Rajasthan v. Sohan
Lal and Others 2004 (1) Suppl. SCR 480 = 2004 (5)
SCC 573; State of Uttar Pradesh v. Ajai Kumar 2008
(2) SCR 552 = 2008 (3) SCC 351; State of Maharashtra v.
G Sujay Mangesh Poyarekar 2008 (13) SCR 750 = 2008 (9)
SCC 475 – relied on
F
2. It is the duty of every court to bear in mind that
when a crime is committed, though an individual is
H affected or, on some occasions, a group of individuals
STATE OF MADHYA PRADESH v. GIRIRAJ DUBEY 1099
become victims of the crime, yet in essentiality, every
crime is an offence against the collective as a whole. It
creates a stir in the society. The degree may be different
depending on the nature of the offence. That makes the
duty of the High Courts to see that justice is done to the
sufferer of the crime which, eventually, mitigates the
cause of the collective and satisfies the cry of the society
against the crime. [para 12] [1104-D-F]
1100
A
relied on
para 6
2004 (2) SCR 68
relied on
para 7
2004 (1) Suppl. SCR 480 relied on
para 8
2008 (2) SCR 552
relied on
para 9
2008 (13) SCR 750
relied on
para 10
B
B
C
C
D
D
E
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 319 of 2013.
From the Judgment & Order dated 04.07.2012 of the High
Court of Madhya Pradesh, bench at Gwalior in Criminal Appeal
No. 1835 of 2012.
Samir Ali Khan, C.D. Singh for the Appellant.
The Judgment of the Court was delivered by
F
DIPAK MISRA, J. 1. Leave granted.
2. Questioning the assailability and substantiality of the
order dated 4.7.2012 passed by the Division Bench of the High
Court of Judicature of Madhya Pradesh at Gwalior in M.Cr.C.
No. 1835 of 2012 whereby the High Court has declined to grant
leave to the State to prefer an appeal against the judgment of
acquittal dated 2.12.2011 passed by the learned Sessions
Judge, Bhind in Sessions Trial No. 193 of 2010, the present
G
[2013] 1 S.C.R.
A appeal by special leave has been preferred.
Case Law Reference:
(1981) 4 SCC 129
SUPREME COURT REPORTS
3. Shorn of unnecessary details, the facts which are
requisite to be stated are that on the basis of an FIR lodged
by the complainant, the investigating agency laid a chargesheet before the competent court against the accusedrespondent for the offences punishable under Sections 294 and
436 of the Indian Penal Code (for short “the IPC”). The learned
Magistrate, on receipt of the charge-sheet, committed the
matter to the Court of Session. The learned Sessions Judge,
by his judgment dated 2.12.2011, acquitted the respondent
herein of the charge on the foundation that there was no witness
to the occurrence of the crime and further PW-2, the wife of the
complainant, could not tell the exact abuses hurled at her by
the accused respondent. In the application seeking leave to
appeal, many a ground was urged challenging the judgment of
acquittal. The Division Bench of the High Court, by the
impugned order, referred to the trial court judgment and opined
that the trial court, after appreciation of the evidence on record,
has opined that the prosecution has failed to prove the offence
against the respondent beyond reasonable doubt inasmuch as
there was not adequate evidence to substantiate the charges
against the respondent and, hence, there was no legality in the
judgment of acquittal.
4. Mr. Samir Ali Khan, learned counsel for the State, has
raised
a singular contention that the High Court, while declining
F
to grant leave to appeal, has really not ascribed any reason
whatsoever and what has been stated in the impugned order
does not remotely reflect any reason, for the High Court has
only stated that the prosecution has failed to establish the
offence against the respondent by adducing adequate
G
evidence. It is urged by him that it is obligatory on the part of
the High Court to give reasons while dismissing the application
for leave.
5. To appreciate the aforesaid submission, we have
H
H
STATE OF MADHYA PRADESH v. GIRIRAJ DUBEY 1101
[DIPAK MISRA, J.]
bestowed our anxious consideration and carefully perused the
order passed by the High Court. The High Court has only stated
that the trial court, after appreciation of the evidence, had found
that the prosecution had failed to establish the offence against
the respondent and, hence, the judgment of acquittal did not
suffer from infirmity. We are afraid that such an order cannot
be said to be a reasoned order. On the contrary, such an order
is, irrefragably, cryptic and clearly shows non-application of
mind.
6. It needs no special emphasis to say that while dealing
with an application for leave to appeal, it is obligatory on the
part of the High Court to assign reasons. In State of
Maharashtra v. Vithal Rao Pritirao Chawan1, this Court has
observed as follows: “If we would have had the benefit of the view of the learned
Judge of the High Court who refused to grant leave on the
question as to how he came to the conclusion that the
transfer of the charge by making necessary entry in the
cash book of cash handed over to the accused does not
constitute entrustment, we would certainly have been able
to examine the correctness of the view.”
1102
A
B
B
C
It is worth noting that in the said case, this Court has
observed that reason is the heartbeat of every conclusion and
C without the same, it becomes lifeless.
D
E
F
G
(1981) 4 SCC 129.
2.
(2004) 5 SCC 568.
H
dealt with by the High Court leaves much to be desired.
Reasons introduce clarity in an order. On plainest
consideration of justice, the High Court ought to have set
forth its reasons, howsoever brief in its order, indicative
of an application of its mind; all the more when its order is
amenable to further avenue of challenge. The absence of
reasons has rendered the High Court order not
sustainable.”
8. In State of Rajasthan v. Sohan Lal and Others3, after
referring to the case of Dhani Ram Luhar (supra), it has been
ruled that the provision for seeking leave to appeal is to ensure
D that no frivolous appeals are filed against judgments of
acquittal, as a matter of course, but that does not enable the
High Court to mechanically refuse to grant leave by mere cryptic
or readymade observations, pointing out that the court does not
notice any infirmity in the order. Emphasis was laid on the
factum that the orders of the High Court are amenable to further
E
challenge before this Court and, therefore, such ritualistic
observations and summary disposal which has the effect of, at
times, as in certain cases, foreclosing statutory right of appeal
cannot be said to be proper. The Court further opined that giving
of reasons for a decision is an essential attribute of judicial and
F judicious disposal of the matter before courts, and also the only
indication to know about the manner and quality of the exercise
undertaken, as also the fact that the court concerned had really
applied its mind.
G
“The manner in which appeal against acquittal has been
1.
[2013] 1 S.C.R.
A
After so stating, the two-Judge Bench opined that it would
be for the benefit of this Court that a speaking order is passed.
7. In State of Orissa v. Dhaniram Luhar2, this Court, while
dealing with an order of refusal to grant leave by the High Court
without ascribing any reason, expressed that when the High
Court refuses to grant leave without giving any reasons, a close
scrutiny of the order of acquittal, by the appellate forum, has
been lost once and for all. The two-Judge Bench proceeded
to express thus: -
SUPREME COURT REPORTS
H
9. In State of Uttar Pradesh v. Ajai Kumar4, after referring
to the decisions in Sohan Lal (supra) and Dhani Ram Luhar
(supra), the principle for the need to give reasons was
reiterated.
3.
(2004) 5 SCC 573.
4.
(2008) 3 SCC 351.
STATE OF MADHYA PRADESH v. GIRIRAJ DUBEY 1103
[DIPAK MISRA, J.]
10. Yet in another pronouncement in State of Maharashtra
v. Sujay Mangesh Poyarekar5, a two-Judge Bench reproduced
the order where the High Court had opined that the trial court
had appreciated the evidence properly and its judgment could
not be said to be perverse and, on that score, declined to
interfere. In that context, this Court referred to the language
employed under Section 378(3) of the Code of Criminal
Procedure and stated that if the State is aggrieved by an order
of acquittal recorded by a Court of Session, it can file an
application for leave to appeal, as required by sub-section (3)
of Section 378 of the Code, and the appeal can only be
registered after grant of leave and heard on merits. After so
stating, the two-Judge Bench proceeded to lay down as follows:
“20. In our opinion, however, in deciding the question
whether requisite leave should or should not be granted,
the High Court must apply its mind, consider whether a
prima facie case has been made out or arguable points
have been raised and not whether the order of acquittal
would or would not be set aside.
21. It cannot be laid down as an abstract proposition of
law of universal application that each and every petition
seeking leave to prefer an appeal against an order of
acquittal recorded by a trial court must be allowed by the
appellate court and every appeal must be admitted and
decided on merits. But it also cannot be overlooked that
at that stage, the court would not enter into minute details
of the prosecution evidence and refuse leave observing
that the judgment of acquittal recorded by the trial court
could not be said to be “perverse” and, hence, no leave
should be granted.”
1104
A
B
C
D
E
F
G
11. Elaborating further, the Court observed that where there
is application of mind by the appellate court and reasons (may
5.
(2008) 9 SCC 475.
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A be in brief) in support of such view are recorded, the order of
the court may not be said to be illegal or objectionable. A
clarification was given that, however, if arguable points have
been raised and if the material on record discloses necessity
of deeper scrutiny and reappreciation, review or
B reconsideration of evidence, the appellate court must grant
leave as sought and decide the appeal on its merits. In the said
case, as the Bench noted, the High Court did neither. Emphasis
was laid on the failure on the part of the High Court to record
reasons for refusal of such leave.
C
12. At this juncture, we are obliged to state that despite
the clear law laid down by this Court, it has come to our notice
that the High Courts, while declining to grant leave against the
judgments of acquittal, do not indicate reasons for formation
of such an opinion. In number of cases, anguish has been
D expressed. It is the duty of every court to bear in mind that when
a crime is committed, though an individual is affected or, on
some occasions, a group of individuals become victims of the
crime, yet in essentiality, every crime is an offence against the
collective as a whole. It creates a stir in the society. The degree
E may be different depending on the nature of the offence. That
makes the duty of the High Courts to see that justice is done
to the sufferer of the crime which, eventually, mitigates the
cause of the collective and satisfies the cry of the society
against the crime. It does not necessarily mean that all windows
F remain constantly open for all kinds of cases to be entertained
in appeal, but, while closing the windows, there has to be proper
delineation and application of mind so that none would be in a
position to say that the order epitomizes “the inscrutable face
of the sphinx”. The order has to reflect proper application of
G mind and such reflection of application of mind has to be
manifest from the order itself. Expression of an opinion founded
on sound reasoning is like the light of the Sun. Absence of
reasons is comparable to use a candle when the sunlight is
required. We may repeat at the cost of repetition that we have
H
STATE OF MADHYA PRADESH v. GIRIRAJ DUBEY 1105
[DIPAK MISRA, J.]
said so with immense pain and enormous hope that occasions
should not arise in future for passing of such cryptic and
unreasoned orders. It should be kept in mind that the judgments
of this Court, being binding on all courts, are required to be
followed in letter and spirit. That is the constitutional mandate
and that is the judicial discipline.
13. Consequently, the appeal is allowed, the order passed
by the High Court is set aside and the matter is remitted to the
High Court to pass a cogent and reasoned order relating to
grant or refusal of leave. We may hasten to clarify that we have
not expressed any opinion on the merits of the case.
R.P.
Appeal allowed.
[2013] 1 S.C.R. 1106
A
A
B
B
MATA PRASAD MATHUR (DEAD) BY LRS.
v.
JWALA PRASAD MATHUR & ORS.
(Civil Appeal No. 1457 of 2013)
FEBRUARY 20, 2013
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]
C
Code of Civil Procedure, 1908 – Or.22, r.4(4) – Suit for
declaration, partition and injunction – Death of a nonC contesting defendant – Failure of the plaintiffs-respondents to
bring on record the LRs of such defendant – Held: Did not
result in abatement of the suit – Requirement of substitution
of the LRs of such non-contesting defendant could be
legitimately dispensed with by the Court by virtue of the power
D of exemption abundantly available to it under Or.22, r.4(4).
The question that arose for determination in the
present appeal was whether the suit filed by the plaintiffsrespondents seeking a decree for declaration, partition
and injunction against the appellants abated on the
E
failure of the plaintiffs to file an application for substitution
of the Legal Representatives of a deceased defendant ‘V’.
The trial Court, when approached by the plaintiff for
deletion of the name of the deceased defendant ‘V’ and
setting aside of the abatement, held that the suit had
F abated in toto and accordingly dismissed the same. In an
appeal filed by the plaintiffs against that order, the First
Appellate Court held that the trial Court had not properly
considered the issue in the light of the nature of the
averments made in the plaint and the relief sought by the
G plaintiff. The Court accordingly set aside the judgment
and order passed by the trial Court with the observation
that the demise of ‘V’ and failure of the plaintiff to bring
his legal representatives on record did not affect the
H
1106
MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1107
PRASAD MATHUR & ORS.
maintainability of the suit. The High Court affirmed that
order, and hence the instant appeal.
1108
A
Dismissing the appeal, the Court
HELD: 1. This Court is inclined to agree with the
order of the First Appellate Court that the suit had not
abated no matter for a reason different from the one that
prevailed with that Court. It is common ground that ‘V’defendant was proceeded ex parte as he had not
appeared to contest the suit or file a written statement.
Substitution of the legal representatives of such a
defendant could be legitimately dispensed with by the trial
Court in view of the provisions of Order XXII Rule 4 SubRule 4. The High Court rightly noticed this aspect in its
order albeit the manner in which the High Court dealt with
the same is not all that satisfactory. Be that as it may, so
long as the power of exemption was available to the trial
Court, the same could and ought to have been exercised
by the First Appellate Court while hearing an appeal
assailing the dismissal of the suit as abated. [Paras 3, 4]
[1109-E-F; 1110-C-D]
2. The history of the amendment of Order XXII, Rule
4 may be traced to highlight the purpose underlying the
same. The Legislature incorporated the provision of Order
XXII Rule 4(4) with a specific view to expedite the process
of substitution of the LRs of non-contesting defendants.
In the absence of any compelling reason to the contrary,
the Courts below could and indeed ought to have
exercised the power vested in them to avoid abatement
of the suit by exempting the plaintiff from the necessity
of substituting the legal representative of the deceased
defendant-‘V’. The view taken by the First Appellate Court
and the High Court that, failure to bring the legal
representatives of deceased did not result in abatement
of the suit can be more appropriately sustained on the
strength of the power of exemption that was abundantly
B
C
D
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A available to the Courts below under Order XXII Rule 4 (4)
of the CPC. [Paras 5, 9] [1110-E; 1113-E-G]
3. In the case at hand, the legal representatives of the
deceased defendant ‘V’ have already been brought on
record in place of their uncle (V’s brother) who died
B
issueless. They can, therefore, represent the estates left
behind by both the brothers. Grant of exemption in that
view is only a matter of maintaining procedural rectitude
more than any substantial adjudication of the matter in
controversy. This Court has at any rate adopted a liberal
C approach in setting aside abatement of suits. The trial
court shall now proceed to dispose of the suit on merits
expeditiously. [Para 10 & 11] [1113-H; 1114-A-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1457
of 2013.
D
From the Judgment & Order dated 21.04.2006 of the High
Court of Madhya Praesh, Judicature Jabalpur, bench at Gwalior
in Second Appeal No. 1454 of 2005.
E
E
WITH
Contempt Petition (C) No. 11 & 435 of 2011 in SLP (C) No.
21276 of 2006.
F
F
Shiv Sagar Tiwari, Sangeeta Gaur, Mahabir Singh Magla,
Vikas Mehta for the Appellants.
Indu Malhotra, Vivek Jain, Chinmayee Chantra, Kush
Chaturvedi, Vikas Mehta, Puneet Jain, Christi Jain, Pratibha
Jain for the Respondents.
G
G
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. The short question that arises for determination in this
H
H
MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1109
PRASAD MATHUR & ORS. [T.S. THAKUR, J.]
appeal is whether the suit filed by the plaintiffs-respondents
seeking a decree for declaration, partition and injunction
against the appellants abated on the failure of the plaintiffs to
file an application for substitution of the Legal Representatives
of Virendra Kumar one of the defendants. The trial Court, when
approached by the plaintiff for deletion of the name of the
deceased and setting aside of the abatement, held that the suit
had abated in toto and accordingly dismissed the same. In an
appeal filed by the plaintiffs against that order, the First
Appellate Court held that the trial Court had not properly
considered the issue in the light of the nature of the averments
made in the plaint and the relief sought by the plaintiff. The Court
accordingly set aside the judgment and order passed by the
trial Court with the observation that the demise of Virendra
Kumar and failure of the plaintiff to bring his legal
representatives on record did not affect the maintainability of
the suit. The High Court of Madhya Pradesh has affirmed that
order, hence the present appeal.
3. Having heard learned counsel for the parties, we are
inclined to agree with the order of the First Appellate Court that
the suit had not abated no matter for a reason different from
the one that prevailed with that Court. It is common ground that
Virendra Kumar-defendant was proceeded ex parte as he had
not appeared to contest the suit or file a written statement.
Substitution of the legal representatives of such a defendant
could be legitimately dispensed with by the trial Court in view
of the provisions of Order XXII Rule 4 Sub-Rule 4, which is as
under:
“4. Procedure in case of death of one of several
defendants or of sole defendant.-
1110
A
A
B
B
C
D
E
F
[2013] 1 S.C.R.
(4)The court whenever it thinks fit, may exempt the
plaintiff from the necessity of substituting the legal
representatives of any such defendant who has failed to
file a written statement or who, having filed it, has failed
to appear and contest the suit at the hearing; and
judgment may, in such case, be pronounced against the
said defendant notwithstanding the death of such
defendant and shall have the same force and effect as if
it has been pronounced before death took place.”
4. The High Court has, in our view, rightly noticed this
C aspect in its order albeit the manner in which the High Court
dealt with the same is not all that satisfactory. Be that as it may,
so long as the power of exemption was available to the trial
Court, the same could and ought to have been exercised by
the First Appellate Court while hearing an appeal assailing the
D dismissal of the suit as abated.
5. We may at this stage briefly trace the history of the
amendment of Order XXII, Rule 4 only to highlight the purpose
underlying the same. The Law Commission had, despite
E noticing that many of the High Courts had made local
amendments to incorporate Sub-Rule (4) to Rule 4 to Order
XXII, made its recommendations against a similar
incorporation. In the 27th Report of the Law Commission of
India, on the amendment to the Code of Civil Procedure, 1908,
F the Commission noted at p.210,
“Order XXII, rule 4 – relaxation of
G
G
H
H
(1) xxxxx
(2) xxxxx
(3) xxxxx
SUPREME COURT REPORTS
The question whether the court should have power to
grant exemption in respect of the requirement of
substitution in a proper case has been considered. Local
amendments giving such power have been made by the
High Courts of Calcutta, Madras, Orissa, etc., in respect
of a defendant who has failed to appear and contest the
suit. It is, however, felt that such a change should not be
made, as it would impinge upon the rule that litigation
MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1111
PRASAD MATHUR & ORS. [T.S. THAKUR, J.]
should not proceed in the absence of the heirs of a
person who is dead. These local Amendments have not,
therefore, been adopted”.
6. In the 54th Report of the Law Commission, the matter
was once more taken up for consideration by the Commission.
The Report notes in Chapter 22 at p.193,
1112
A
B
A
B
”Order 22, rule 4 – power to relax – whether should be
given
22.2. The first point concerns Order 22, rule 4, under
which non-substitution of a legal representative leads to
abatement of the suit. The question whether the Court
should, in a proper case, have power to grant exemption
in respect of the requirement of substitution of the legal
representative was considered in the earlier Report. The
Commission noted that local amendments giving such
power had been made by the High Courts of Calcutta,
Madras, Orissa, etc., in respect of a defendant who has
failed to appear and contest the suit. It however, felt that
such a change should not be made, as it would impinge
upon the rule that litigation should not proceed in the
absence of the heirs of a person who is dead. These local
Amendments were not therefore, adopted.
22.3. We considered the matter further. At one stage we
were inclined to add sub-rule (4) in Order 22, rule 4 as
follows:“(4)
The Court, whenever it seems fit, may exempt the
plaintiff from the necessity to substitute the legal
representative of any defendant against whom the
case has been allowed to proceed ex parte or who
has failed to file his written statement or who,
having filed it, has failed to appear and contest at
the hearing, and the judgment in such a case may
be pronounced against such defendant
C
D
[2013] 1 S.C.R.
notwithstanding the death of such defendant, and
shall have the same force and effect as if it had
been pronounced before the death took place.”
22.4. We have however, come to the conclusion
that any such amendment would amount to
passing a decree against a dead man and would
be wrong in principle. Hence no change is
recommended”.
7. Interestingly, the Amendment that followed the 54th Law
C Commission Report of 1973, substantially introduced Order
XXII Rule 4(4) to the Code of Civil Procedure, vide s.73(i) of
Act 104 of 1976. It is noteworthy that in the original Bill, the
provision of Order XXII Rule 4(4) was not included. The Bill was
then referred to the Joint Committee and a recommendation
D made for the inclusion of a provision akin to Rule 4(4). The
Joint Committee noted:
E
E
F
F
G
G
H
SUPREME COURT REPORTS
H
“55. Clause 73 (Original clause 76) – (i) The Committee
were informed during the course of evidence by various
witnesses that delay in the substitution of the legal
representatives of the deceased defendant was one of
the causes of delay in the disposal of suits. The
Committee were also informed that, as a remedial
measure, the Calcutta, Madras, Karnataka and Orissa
High Courts had inserted a new sub-rule in Rule 4 of
Order XXII to the effect that substitution of the legal
representatives of a non-contesting defendant would not
be necessary and the judgment delivered in the case
would be as effective as it would have been if it had been
passed when the defendant was alive.
The Committee are, therefore, of the view that in
order to avoid delay in the substitution of the legal
representatives of the deceased defendant and
consequent delay in the disposal of suits, similar
provision may be made in the Code itself. New sub-rule
MATA PRASAD MATHUR (DEAD) BY LRS. v. JWALA 1113
PRASAD MATHUR & ORS. [T.S. THAKUR, J.]
3A in rule 4 of Order XXII has been inserted accordingly”.
1114
A
8. The Joint Committee, accordingly, inserted the following
provision in the Amendment Bill, which was later incorporated
through the Amendment.
“73. In the First Schedule, in Order XXII,–
B
(i) in Rule 4, after sub-rule (3), the following sub-rules shall
be inserted, namely:“(4)
The Court whenever it thinks fit, may exempt the
plaintiff from the necessity of substituting the legal
representatives of any such defendant who has
failed to file a written statement or who, having filed
it, has failed to appear and contest the suit at the
hearing; and judgment may, in such case, be
pronounced against the said defendant and shall
have the same force and effect as if it has been
pronounced before death took place.”
9. It would appear from the above that the Legislature
incorporated the provision of Order XXII Rule 4(4) with a
specific view to expedite the process of substitution of the LRs
of non-contesting defendants. In the absence of any compelling
reason to the contrary the Courts below could and indeed ought
to have exercised the power vested in them to avoid
abatement of the suit by exempting the plaintiff from the
necessity of substituting the legal representative of the
deceased defendant-Virendra Kumar. We have no manner of
doubt that the view taken by the First Appellate Court and the
High Court that, failure to bring the legal representatives of
deceased Virendra Kumar did not result in abatement of the
suit can be more appropriately sustained on the strength of the
power of exemption that was abundantly available to the Courts
below under Order XXII Rule 4 (4) of the CPC.
10. It is important to note that the legal representatives of
C
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A Virendra Kumar, deceased, have already been brought on
record in place of Devendra Kumar, their uncle (Virendra
Kumar’s brother) who died issueless. They can, therefore,
represent the estates left behind by both Virendra Kumar and
Devendra Kumar. Grant of exemption in that view is only a
B matter of maintaining procedural rectitude more than any
substantial adjudication of the matter in controversy. This Court
has at any rate adopted a liberal approach in setting aside
abatement of suits.
11. In the result this appeal fails and is, hereby, dismissed.
C The trial Court shall now proceed to dispose of the suit on
merits as early as possible. No costs.
Contempt Petition (C) Nos.11 of 2011 and No.435 of 2011
D
D
E
E
12. We have heard learned counsel for the parties and
examined the averments made in the contempt petitions. We
do not consider it necessary to take any further action in these
petitions in which the parties appear to be accusing each other
of committing contempt of this Court. The contempt petitions
are, therefore, dismissed.
B.B.B.
F
G
H
Appeal & Contempt Petitions dismissed.
[2013] 1 S.C.R. 1115
RAVINDERSINGH @ RAVI PAVAR
v.
STATE OF GUJARAT
(Criminal Appeal No. 334 of 2013 etc.)
FEBRUARY 22, 2013
1116
A
B
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]
Code of Criminal Procedure, 1973:
s.439(1) read with Art.136 of the Constitution – Bail –
Hooch tragedy – A large number of persons died and other
suffered serious physical injuries by consuming country made
liquor containing ethyl and methyl alcohol – Held: The
materials placed on record prima facie establish that the
appellant was not a mere supplier of spurious alcohol but he
was involved in the criminal conspiracy of manufacturing
spurious liquor along with the main accused and selling the
same at various places through his men – Besides, the
appellant is a habitual offender and is facing several similar
cases – There is every likelihood that if the accused/appellant
is released on bail, he would threaten the witnesses and again
indulge in sale of spurious liquor – Therefore, the appellant
is not at all entitled to bail at this stage – The record reveals
that respondent in the other appeal is a prime conspirator and
had indulged in illegally supplying ethyl and methyl alcohol
to main accused for manufacturing country made liquor –
Further, the respondent is a habitual offender – There are
several cases pending against him – He has also abused the
bail granted to him in a different case – Taking note of all the
aspects, the antecedents of the respondent, the gravity and
nature of offence, loss of human lives, the impact on the social
fabric of the society, his continuous involvement in criminal
activities while on bail, the Court is satisfied that the
respondent does not deserve to continue to remain on bail –
C
1115
H
D
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A Accordingly, the judgment and order passed by High Court
granting him bail is set aside – Constitution of India, 1950 –
Art. 136.
The appellant in Crl. A. No. 334 of 2013 and the
respondent
in Crl. A. No. 335 and 336 of 2013 were
B
charged with various offences punishable under the
Penal Code, 1860 and Bombay Prohibition Act, 1949, in
the case relating to the hooch tragedy which resulted in
death of 147 persons and serious physical injuries to 205
others after consuming spurious country made liquor
C
containing poisonous chemical methyl alcohol which
was manufactured and supplied by accused persons.
The application for bail filed by the appellant in Crl. A. No.
334 of 2013 was rejected whereas the bail applications
of the respondent in Crl. A. 335 and 336 of 2013 were
D allowed by the High Court.
Disposing of the appeals, the Court
E
F
G
HELD: 1.1 Normally, while considering the
E application for bail, it is not necessary for the court to
assess the materials placed by either side, discuss and
arrive at a definite conclusion. However, taking note of
the gravity of the offence, this Court has to deal with
those aspects confining to the disposal of the bail
F application. [para 11] [1121-D-E]
1.2 In a State having prohibition policy, supply of raw
material for liquor, its production and distribution are
illegal. It is a matter of common knowledge that if any one
consumes liquor manufactured out of ethyl/methyl
G alcohol, it would have very adverse effect on the body
which can cause death or bodily injury as is likely to
cause death. [para 26] [1127-G-H; 1128-A]
H
RAVINDERSINGH @ RAVI PAVAR v. STATE OF
GUJARAT
1117
Crl. Appeal No. 334 of 2013
2.1 A perusal of the reasoning of the High Court as
well as the materials placed by the prosecution prima face
establish that the appellant was not a mere supplier of
spurious alcohol but he was involved in the criminal
conspiracy of manufacturing spurious liquor along with
the main co-accused (A-1) and selling the same at various
places through his men. The statements of various
persons support the greater role played by the accused/
appellant. [para 14] [1123-A-B]
2.2 It has also been brought to the notice of the Court
that the appellant is a “habitual offender” and is facing
more than 20 cases including similar cases under the
various provisions of IPC and the Bombay Prohibition
Act, 1949. It is further pointed out that there is every
likelihood that if the accused/appellant is released on bail,
he would threaten the witnesses and again indulge in
sale of spurious liquor. The appellant cannot claim parity
with other accused in claiming bail. Therefore, the
appellant is not at all entitled to bail at this stage and the
High Court has rightly denied him bail. [para 15, 16-17]
[1123-E-G; 1124-C]
1118
A
B
C
D
[2013] 1 S.C.R.
A enlarging the accused on bail. [para 19 and 23] [1124-H;
1125-A; 1127-A-B]
3.2 The State has highlighted that A-2 is a “habitual
offender” and there are 22 cases pending against him in
various police stations. It is also mentioned that during
B
the period while he was granted temporary bail by the
High Court, he indulged in an offence of theft and a case
was registered against him u/s 379 of IPC for which he
was arrested and later enlarged on bail. Taking note of
all the aspects, the antecedents of the respondent, the
C gravity and nature of offence, loss of human lives, the
impact on the social fabric of the society, his continuous
involvement in criminal activities while on bail, the Court
is satisfied that the respondent (A-2) does not deserve to
continue to remain on bail. Accordingly, the judgment and
D order passed by the High Court is set aside. [para 24, 25
and 27] [1127-C-D, F; 1128-B-C]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 334 of 2013.
E
E
Crl. Appeal Nos. 335 and 336 of 2013
3.1 It is highlighted by the prosecution that during the
course of investigation, it has been revealed that the
respondent (A-2) is a prime conspirator and had indulged
in illegally supplying ethyl and methyl alcohol to A-1for
manufacturing country made liquor. Because of the
conduct of A-2 in supplying ethanol and methanol to A-1
for preparation of spurious liquor, several casualties and
injuries were resulted. The High Court, in a casual way,
has concluded that since the business of A-2 was looked
after by his nephew and he also disposed of his petrol
pump, A-2 cannot be blamed. It is not a valid ground for
SUPREME COURT REPORTS
From the Judgment & Order dated 10.02.2012 of the High
Court of Judicature for Gujarat at Ahmedabad in Criminal Misc.
Application No. 1281 of 2012.
WITH
F
G
F
G
Crl. A. Nos. 335 & 336 of 2013.
K.T.S. Tulsi, Uday U. Lalit, Amit Sharma, Hemantika Wahi,
Pinky Behra, Nandini Gupta, Yogesh Ravani, Shiv Mangal
Singh, Abhinandini Sharma, T. Mahipal for the appearing
parties.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. Leave granted in all the special
leave petitions.
H
H
2. Ravindersingh @ Ravi Pavar has preferred appeal
RAVINDERSINGH @ RAVI PAVAR v. STATE OF
GUJARAT [P. SATHASIVAM, J.]
1119
arising out of SLP (Crl.) No. 3334 of 2012 before this Court
against the final judgment and order dated 10.02.2012 passed
by the High Court of Gujarat at Ahmedabad in Criminal Misc.
Application No. 1281 of 2012 whereby the High Court
dismissed his application filed under Section 439 of the Code
of Criminal Procedure, 1973 (in short ‘the Code’) seeking
regular bail in C.R. No. 252 of 2009 registered with Odhav
Police Station, Ahmedabad for the offences punishable under
Sections 302, 307, 328, 272, 273, 201, 109, 114, 120B of the
Indian Penal Code, 1860 (‘IPC’ for short) and Sections
65(a)(b)(c)(d)(e), 66(1)(b), 67-1A, 72, 75, 81 and 83 of the
Bombay Prohibition Act, 1949.
3. The State of Gujarat, aggrieved by the judgment and
order dated 29.09.2011, passed by the High Court in Criminal
Misc. Application Nos. 12384 and 12385 of 2011 whereby the
High Court enlarged one Jayesh Hiralal Thakkar (A-2) on bail
in connection with C.R. No. 161 of 2009 registered with
Kagdapith Police Station, Ahmedabad for the offences
punishable under Sections 120B, 302, 307, 328, 272, 273,
201, 217, 221, 109 and 114 of IPC and Sections
65(a)(b)(c)(d)(e), 66(1)(b), 68, 72, 75, 81 and 83 of the Bombay
Prohibition Act, 1949 and C.R. No. 252 of 2009 registered with
Odhav Police Station, Ahmedabad for the very same offences,
has filed the other two appeals arising out of special leave
petition Nos. 4026 and 4027 of 2012.
4. Since the subject-matter of all the three appeals is one
and the same, they are being disposed of by this common
judgment.
S.L.P. (Criminal) No. 3334 of 2012:
5. The case relates to the hooch tragedy which resulted
into the death of 147 persons and serious physical injuries to
205 others after consuming spurious country-made liquor
consisting poisonous chemical Methyl Alcohol in different parts
of the Ahmedabad city, Gujarat, in July, 2009 for which case
1120
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
A has been registered against several accused persons under
various Sections of IPC and the Bombay Prevention Act, 1949
with Odhav and Kagdapith Police Stations vide C.R. Nos. 252
and 161 of 2009 respectively.
B
B
C
D
E
F
G
H
6. The charge framed against Ravindersingh @ Ravi
Pavar (accused No.11) is that he was a party to a meeting held
with other accused persons prior to the date of the incident
wherein they conspired to manufacture and distribute countrymade liquor consisting poisonous chemical Methyl Alcohol, in
order to gain financial benefit, by selling the same due to its
C low cost. The charge sheet further proceeds that as a part of
criminal conspiracy, he along with other accused, agreed to
manufacture and distribute/sell such liquor to suppliers in spite
of the knowledge that on consumption of the same, it can cause
death or severe physical damage/injury to the consumer.
D
7. When the accused/appellant moved an application
under Section 439 of the Code in connection with C.R. No. 252
of 2009, before the High Court, on going into the specific
allegations against him, his role and involvement in the hooch
E tragedy which resulted into more than 147 deaths in the city of
Ahmedabad and after satisfying prima facie case as well as
considering the gravity of the crime punishable under Section
302 etc. the High Court rejected his third successive bail
application.
F
8. Mr. K.T.S. Tulsi, learned senior counsel for the appellant,
after taking us through the allegations in the charge sheet and
connected materials submitted that in the absence of any
material that the appellant had any knowledge that illicit liquor
was poisonous or that he had any intention to cause the death
G of the deceased persons at the most it is the case under
Section 304 of IPC and not under Section 302 of IPC. He
further submitted that the High Court failed to consider that the
co-accused, alleged to be having similar role as that of the
appellant as well as those accused allegedly having graver role,
H have already been granted bail and, therefore, on the ground
RAVINDERSINGH @ RAVI PAVAR v. STATE OF
GUJARAT [P. SATHASIVAM, J.]
1121
of parity also, the accused/appellant deserves to be enlarged
on bail on the same terms and conditions.
9. Ms. Hemantika Wahi, learned counsel appearing for the
State, by taking us through the allegations mentioned in the
charge sheet, statement of witnesses and the gravity of the
offence submitted that in view of the appellant’s association
with the main accused, namely, Vinod @ Dagri (A-1) and also
taking note of the fact that he is a “habitual offender” involved
in many similar offences, it is not desirable to enlarge him on
bail and according to her, the High Court was fully justified in
dismissing his bail application.
1122
A
A
B
B
C
C
10. We have carefully considered the allegations, materials
placed, gravity of the offence etc. in detail.
11. Normally, while considering the application for bail, it
is not necessary for the court to assess the materials placed
by either side discuss and arrive at a definite conclusion.
However, taking note of the gravity of the offence, we have no
other option except to deal with those aspects confining to the
disposal of the bail application. The charge sheet (AnnexureP3) filed along with the special leave petition gives the details
of involvement/role played by the accused persons. The role of
the present appellant (A-11) reads as under:
“The accused No.11 Ravindersingh @ Ravi s/o
Jayramsingh Pavar mentioned in column No.1 who was
doing the business of country and foreign liquor with his
partners column No.1 accused Nos. 29 and 30 and having
the criminal history and remaining in contact with the
accused No.1 for obtaining cheap country liquor having
Methyl Alcohol made the partnership with the accused
No.1 and obtained county liquor having Methyl Alcohol from
accused No.1 and in spite of aware of the fact that it
caused physical harm which cause death of the persons
brought it from Vanthvadi village on 06.07.2009 through his
persons accused No. 32 and 33 and sold it on cheap rates
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
to the column No.1 accused Nos. 27, 28 and 31 and
column No. 2 accused Nos. 1 and 2 and also selling it to
his own liquor stand place situated in Bapunagar area
behind General Hospital through his persons and on
drinking caused the death of the persons and also causing
the serious injuries to the peoples fulfilled the criminal
conspiracy and on 06.07.2009 lots of people died in the
Ahmedabad city drinking the poisonous liquor and
admitted into the Hospitals and in spite of knowing the said
facts continue to sell the poisonous country liquor
committed the serious nature offence and thereafter
disposed off the evidence had disposed the chemicalized
poisonous liquor which is in his possession.”
12. Mr. Tulsi, learned senior counsel for the accused/
appellant has contended that the only allegation against him is
D that he has simply sold the country-made liquor and prima facie
no case is being made out against him for manufacturing
spurious liquor and, therefore, he cannot be charged under
Sections 302, 307 and 328 of IPC. On going through the entire
materials, we are unable to accept the same.
E
13. The materials placed by the prosecution show that the
appellant was not just a supplier of alcohol but was one of the
main conspirators along with Vinod @ Dagri (A-1) in the
manufacture of spurious alcohol along with other co-accused.
F It is the case of the prosecution as established by the statement
of witnesses that the appellant, along with main accused, with
a view to earn easy money, hatched a conspiracy for
manufacturing spurious alcohol from Methyl Alcohol, very well
knowing that it is poisonous and can cause death or severe
physical damage/injury on consumption. The statements of
G
various persons relied on by the prosecution supports the
above stand. The investigation further revealed that on the next
day of the hooch tragedy in July, 2009, the appellant and his
two associates had gone to one-Farzana Banu to sell the huge
stock of spurious liquor, since the premises of the appellant
H was raided by the Police.
RAVINDERSINGH @ RAVI PAVAR v. STATE OF
GUJARAT [P. SATHASIVAM, J.]
1123
14. A perusal of the reasoning of the High Court as well
as the materials placed by the prosecution prima face establish
that the appellant was not a mere supplier of spurious alcohol
but he was involved in the criminal conspiracy of manufacturing
spurious liquor along with the main co-accused Vinod @ Dagri
(A-1) and selling the same at various places through his men.
The statements of various persons including one Dahiben
support the greater role played by the accused/appellant.
15. Mr. Tulsi, learned senior counsel has also claimed
parity with the co-accused Jayesh Hiralal Thakker (A-2), who
has been granted bail by the High Court, vide order dated
29.09.2011, in the similar offence and claimed similar order in
respect of the present appellant - Ravindersingh @ Ravi Pavar.
He also brought to our notice that bail has been granted to one
Minaben (A-27) on 20.07.2011 and the State has not filed any
special leave petition before this Court. As far as grant of bail
to Jayesh Hiralal Thakker is concerned, the State has filed
Special Leave Petition (Criminal) Nos. 4026 and 4027 of 2012,
which we are going to consider after the conclusion of the
present appeal. Hence, the appellant cannot claim parity with
the co-accused Jayesh Hiralal Thakker. Insofar as the order
granting bail to A-27 is concerned, we were taken through the
reasons appended to in her bail application and also of the fact
that she being a lady, we are of the view that the appellant
cannot claim parity with the said accused in claiming bail.
16. Apart from the above materials, learned counsel for the
State has also brought to our notice that the appellant is a
“habitual offender” and is facing more than 20 cases including
similar cases under the various provisions of IPC and the
Bombay Prohibition Act, 1949. It is further pointed out that there
is every likelihood that if the accused/appellant is released on
bail, he would threaten the witnesses and again indulge in sale
of spurious liquor.
17. It is a well known fact that Methanol is a poisonous
substance and by adding the same while manufacturing
1124
A
B
C
D
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A spurious alcohol, it can have devastating results and can cause
death or severe damage to health or injuries to anyone who
consumes it. Further, such type of offences, as in the case on
hand, are against the society at large and who commit the
same do not deserve any leniency, particularly, in the State of
B Gujarat where complete prohibition is being followed. Merely
because the accused/appellant had spent three years as an
undertrial prisoner, taking note of the gravity of the offence, he
is not entitled for bail. As observed earlier, in view of the gravity
of the offence, death of a number of persons, injury to several
C others and the impact on the society as a whole, we hold that
the appellant is not at all entitled to bail at this stage and the
High Court has rightly denied his application for bail,
consequently, the appeal of the accused fails and the same is
dismissed.
D Appeals filed by the State:
S.L.P. (Criminal) Nos. 4026 and 4027 of 2012
E
F
G
H
18. The above mentioned appeals have been preferred by
the State wherein the respondent–Jayesh Hiralal Thakker (AE
2) is an accused in C.R. No.161 of 2009 registered with
Kagdapith Police Station, Ahmedabad and C.R. No. 252 of
2009 registered with Odhav Police Station, Ahmedabad and
in both the cases, he has been charged under various sections
of IPC and the Bombay Prohibition Act, 1949, as mentioned
F earlier and was granted bail by the High Court.
19. The respondent is Accused No. 2 in C.R. No. 252 of
2009 and C.R. No. 161 of 2009 registered at Odhav and
Kagdapith Police Stations respectively wherein total of 147
G persons died and 205 persons were seriously injured after
consuming spurious liquor prepared from chemicals like ethanol
and methanol, which were supplied by the respondent-accused,
who was trading in those hazardous chemicals, to Vinod @
Dagri (A-1) for the preparation of country-made liquor. It is
H highlighted by the prosecution that during the course of
RAVINDERSINGH @ RAVI PAVAR v. STATE OF
GUJARAT [P. SATHASIVAM, J.]
1125
investigation, it was revealed that respondent (A-2) is a prime
conspirator and had indulged in supplying methyl alcohol for
manufacturing country made liquor. According to the
prosecution, the statements recorded from seven witnesses
reveal about the involvement of the respondent. It is also
projected by the prosecution that one of the witnesses stated
that near the petrol pump at Mogar, there is a godown and two
barrels were put in his vehicle to be delivered to A-1, who was
the mastermind in preparation of country made liquor out of
methyl alcohol, supplied by A-2 at village Vanthwadi. It is also
their case that respondent (A-2) had purchased about 500-600
plastic and iron barrels as per his requirement and again in the
month of July, he purchased 70 more barrels. The prosecution
has also projected that A-2 had sufficient knowledge about the
properties of methyl alcohol and that it is poisonous to use in
the preparation of country liquor. Despite this, the respondent
used to obtain the same illegally from the tankers coming from
Kutch and Mumbai through absconding co-accused and kept
the same in his custody without permit and supplied it to Vinod
@ Dagri (A-1) for the preparation of liquor. All these particulars
form part of charge sheet filed on 05.09.2009.
1126
A
A
B
B
C
C
D
D
E
E
F
F
20. The specific allegations in the charge sheet about the
respondent (A-2) are as under:
“Accused No.2 Jayesh Hiralal Thakkar stated in the Column
No.(1) having the criminal antecedents who is running
illegal business of chemical at the Godown situated at the
petrol Pump located at Village – Mogar, in company of the
Accused No.3 named in the Column No.(1) and through
the accused Nos. 3, 4 and 5 mentioned in the Column No.
(2) had illegally obtained the poisonous Methyl Alcohol
from the Tankers coming from Bomby and Kutch
possessed the same without any Pass or permit, and
inspite of having knowledge regarding poisonousness of
Methyl Alcohol and that it is to be used in preparing liquor
the Accused Nos. 4, 5, 6, 7 and 8 had sold the poisonous
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
Methyl Alcohol to Accused No.1 for manufacturing
Degenerated poisonous country liquor and thereby have
played active role in the conspiracy with the view to earn
monetary profit and after the declaration of Hooch Tragedy
disposed of the Methyl Alcohol within their possession and
had gone on run and thereby have committed serious
offence.”
21. The information furnished by the prosecution clearly
shows that in a State having complete prohibition policy, the
supply of raw material for liquor, its production and distribution
are illegal. It is also demonstrated that respondent (A-2) has
illegally supplied poisonous chemicals like ethyl and methyl
alcohol to A-1 for the manufacture of country made liquor. It is
not in dispute that if anyone consumes liquor manufactured out
of ethyl/methyl alcohol, it would have a very adverse effect on
the body and can cause death or bodily injury as is likely to
cause death. In spite of the abundant materials placed by the
prosecution and even after taking note of the fact that the
samples sent to Forensic Science Laboratory (FSL) for
analysis confirmed the presence of methanol and ethanol and
also of the fact that A-2 has supplied those materials to A-1,
the claim that he had no knowledge about all these aspects is
unacceptable. Though the learned Single Judge of the High
court perused and verified the expert opinion of the Medical
Officer, the FSL report and noted that poisonous chemical is
found, after casually finding that there is no “meeting of mind”
and “agreement for criminal conspiracy” accepted the case of
A-2 and enlarged him on bail.
22. The other reason given by the High Court is that the
whole transaction in the said business of A-2 was looked after
G
by his nephew and in view of the fact that he has already
disposed of the petrol pump, concluded that prima facie
ingredients of Sections 299 and 300(4) of IPC would not attract
and enlarged him on bail after imposing certain conditions.
H
RAVINDERSINGH @ RAVI PAVAR v. STATE OF
GUJARAT [P. SATHASIVAM, J.]
1127
23. We have already noted that because of the conduct
of A-2 in supplying ethanol and methanol to A-1 for preparation
of spurious liquor, several casualties and injuries were resulted
and in view of the acceptable materials, we are unable to
accept the reasoning of the High Court. We are constrained to
observe that the High Court, in a casual way, has concluded
that since his business was looked after by his nephew and he
also disposed of his petrol pump, A-2 cannot be blamed, which
according to us, is not a valid ground for enlarging him on bail.
24. In para 5 of the rejoinder affidavit, the State has
highlighted that A-2 is a “habitual offender” and there are 22
cases pending against him in various police stations. It is also
mentioned in the counter affidavit that during the period while
he was granted temporary bail by the High Court, he indulged
in an offence of theft and a case was registered against him
vide I-C.R. No. 92 of 2011 under Section 379 of IPC by the
Vasad Police Station for which he was arrested on 10.08.2011
and later enlarged on bail. It is also brought to our notice that
the respondent A-2, while on regular bail, was arrested on
13.09.2012 in Vadodara city in connection with Javaharnagar
Police Station crime registered vide I-C.R. No. 94 of 2012 under
Sections 407, 408 and 120B and later on he was released on
bail.
25. Taking note of all these aspects, his antecedents, the
gravity and nature of offence, loss of human lives, the impact
on the social fabric of the society, his continuous involvement
in criminal activities while on bail, we are satisfied that
respondent (A-2) does not deserve to continue to remain on
bail.
26. In a State having prohibition policy, supply of raw
material for liquor, its production and distribution are illegal and
A-2 has supplied those poisonous chemicals such as ethyl and
methyl alcohol to A-1 for the manufacture of spurious country
made liquor. It is a matter of common knowledge that if any one
consumes liquor manufactured out of ethyl/methyl alcohol, it
1128
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B
C
D
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A would have very adverse effect on the body which can cause
death or bodily injury as is likely to cause death.
27. Under these circumstances, considering the nature of
the offence and the manner in which A-2 supplied those
poisonous chemicals despite having full knowledge about its
B consequences, we are satisfied that the respondent (A-2) does
not deserve liberty of remaining on bail. Accordingly, the
judgment and order dated 29.09.2011 passed by the High
Court in Criminal Misc. Application Nos. 12384 and 12385 of
2011 is set aside. The respondent (A-2) is directed to
C surrender before the court concerned within a period of two
weeks from today, failing which, necessary steps be taken for
his arrest in order to put him in jail.
28. It is unfortunate to note that in a State like Gujarat,
which strictly prohibits the use of alcohol in any form whatsoever,
D the accused caused death and injuries to several persons by
supplying spurious country-made liquor. Taking a serious view
of the matter, the complexity of the crime, the role played by
accused persons as well as the number of casualties, we are
of the view that it is not a fit case for grant of bail.
E
29. In the light of the above discussion, the appeal of the
accused-Ravinder Singh @ Ravi Pavar is dismissed. We direct
the trial Judge to proceed with the trial on day to day basis
avoiding unnecessary adjournments. It is made clear that if the
trial continues beyond one year from today, they are free to file
F
fresh application before the trial Court. In that event, it is for the
concerned court to dispose of the bail application on merits. It
is made clear that whatever observations made above are only
for the purpose of disposal of the bail application. It is for the
trial Court to decide on the basis of the materials placed before
G it in accordance with law.
30. The appeal of Ravindersingh @ Ravi Pavar (A-11) is
dismissed and the appeals filed by the State are allowed.
H
H
R.P.
Appeals disposed by.
1130
[2013] 1 S.C.R. 1129
RAMESH KUMAR SONI
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 353 of 2013)
FEBRUARY 26, 2013
A
B
[T.S. THAKUR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Code of Criminal Procedure (Madhya Pradesh
Amendment) Act 2007:
First Schedule to Code of Criminal Procedure, 1973 –
Amendment – Offences punishable u/ss 467, 468 and 471
made triable by Court of Session in State of Madhya Pradesh
– Offence committed prior to amendment but charge-sheet
filed after the amendment came into force – Held: Magistrate
on receipt of a charge-sheet which was tantamount to
institution of a case against the appellant was duty bound to
commit the case to the Court of Session as three of the
offences with which he was charged were triable only by Court
of Session – Apart from the fact that as on the date the
amendment came into force no case had been instituted
against the appellant nor the Magistrate had taken
cognizance against the appellant, any amendment shifting
the forum of the trial had to be on principle retrospective in
nature in the absence of any indication in the Amendment Act
to the contrary – Appellant could not claim a vested right of
forum for his trial for, no such right is recognised – Judgment
of Full Bench of Madhya Pradesh High Court overruled –
Prospective overruling of judgment – Retrospective operation
of amendment shifting the forum – Code of Criminal
Procedure, 1973 – First Schedule as amended in State of
Madhya Pradesh.
By the Code of Criminal Procedure (Madhya Pradesh
1129
C
D
E
F
G
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A Amendment) Act of 2007, the first Schedule to the Code
of Criminal Procedure, 1973 was amended w.e.f.
22.2.2008 and, among others, offences punishable u/ss
467, 468 and 471 IPC were made triable by the Court of
Session in State of Madhya Pradesh instead of a Court
B of Magistrate of First Class. Consequently, the Judicial
Magistrates, First Class committed to the Court of
Session all cases involving the relevant offences. On
reference made by a Sessions Judge, a full Bench of the
High Court1 held that all cases pending before the Court
C of Judicial Magistrate First Class as on 22.2.2008
remained unaffected by the amendment and were triable
by the Judicial Magistrate First Class. The Court further
held that all such cases as were pending before the
Judicial Magistrate First Class and had been committed
to the Court of Session would be sent back to the
D
Judicial Magistrate First Class in accordance with law.
Relying upon the said decision the appellant, against
whom a case for offences punishable u/ss 408, 420, 467,
468 and 471 IPC was registered, filed an application
before the trial court seeking a similar direction for
E remission of the case for trial by a Judicial Magistrate.
The case of the appellant was that though the police had
not filed a charge-sheet against the appellant and the
investigation in the case was pending as on the date the
amendment came into force, the appellant had acquired
F the right of trial by a forum specified in Schedule I of the
1973 Code and any amendment shifting the forum of trial
to the Court of Session was not attracted. The trial court
held that since no charge-sheet had been filed before the
Magistrate as on the date the amendment came into force,
G the case was exclusively triable by the Court of Session.
The High Court dismissed the revision petition filed by
the appellant.
H
1.
Re. Amendment of First Schedule of Criminal Procedure Code by Criminal
Procedure Code (M.P. Amendment) Act, 2007 : 2008 (3) MPLJ 311.
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH
1131
In the instant appeal filed by the accused the
question for consideration before the Court was:
“whether the amendment is prospective and will be
applicable only to offences committed after the date the
amendment was notified or would govern cases that were
pending on the date of the amendment or may have been
filed after the same had become operative”.
1132
A
B
Dismissing the appeal, the Court
HELD: 1.1 The Code of Criminal Procedure does not
provide any definition of institution of a case. It is,
however, trite that a case must be deemed to be instituted
only when the court competent to take cognizance of the
offence alleged therein does so. The cognizance can, in
turn, be taken by a Magistrate on a complaint of facts filed
before him which constitutes such an offence. It may also
be taken if a police report is filed before the Magistrate in
writing of such facts as would constitute an offence. The
Magistrate may also take cognizance of an offence on the
basis of his knowledge or suspicion upon receipt of the
information from any person other than a police officer.
In the case of the Court of Session, such cognizance is
taken on commitment to it by a Magistrate duly
empowered in that behalf. All this implies that the case
is instituted in the Magistrate’s Court when the Magistrate
takes cognizance of an offence, in which event the case
is one instituted on a complaint or a police report. [para
7] [1139-A-D]
Jamuna Singh and Ors. v. Bahdai Shah 1964 SCR 37 =
AIR 1964 SC 1541; Devrapally Lakshminarayana Reddy and
Ors. v. Narayana Reddy and Ors. 1976 Suppl. SCR 524 =
(1976) 3 SCC 252; Kamlapati Trivedi v. State of West Bengal
1979 (2) SCR 717 = (1980) 2 SCC 91 – referred to
1.2 No case was pending before the Magistrate
against the appellant as on the date the Amendment Act
C
D
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[2013] 1 S.C.R.
A came into force. That being so, the Magistrate on receipt
of a charge-sheet which was tantamount to institution of
a case against the appellant was duty bound to commit
the case to the Court of Session as three of the offences
with which he was charged were triable only by the Court
B of Session. The Sessions Judge as also the High Court
were, in that view, perfectly justified in holding that the
order of committal passed by the Magistrate was a legally
valid order and the appellant could be tried only by the
Court of Session to which the case stood committed.
[para 8] [1139-G-H; 1140-A-C]
C
1.3 The amendment to the Criminal Procedure Code
in the instant case has the effect of shifting the forum of
trial of the accused from the Court of Magistrate First
Class to the Court of Session. Apart from the fact that as
D on the date the amendment came into force no case had
been instituted against the appellant nor the Magistrate
had taken cognizance against the appellant, any
amendment shifting the forum of the trial had to be on
principle retrospective in nature in the absence of any
E indication in the Amendment Act to the contrary. The
appellant could not claim a vested right of forum for his
trial, for no such right is recognised. [para 13] [1144-E-G]
New India Insurance Company Ltd. v. Smt. Shanti Misra,
Adult 1976 (2) SCR 266 = (1975) 2 SCC 840; Hitendra
F
Vishnu Thakur and Ors. etc. etc. v. State of Maharashtra and
Ors. 1994 (1) Suppl. SCR 360 = (1994) 4 SCC 602; Sudhir
G. Angur and Ors. v. M. Sanjeev and Ors. 2005 (4) Suppl.
SCR 851 = (2006) 1 SCC 141; Nani Gopal Mitra v. State of
Bihar 1969 SCR 411 = AIR 1970 SC 1636; Anant Gopal
G Sheorey v. State of Bombay 1959 SCR 919 = AIR 1958 SC
915 – relied on.
Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass
and Ors. (1952) 54 Bom LR 330 – stood approved
H
H
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH
1133
Manujendra Dutt. v. Purnedu Prosad Roy Chowdhury &
Ors. 1967 SCR 475 = AIR 1967 SC 1419, Commissioner of
Income-tax, Bangalore v. Smt. R. Sharadamma 1996 (3)
SCR 1200 = (1996) 8 SCC 388 and R. Kapilanath(Dead)
through L.R. v. Krishna 2002 (5) Suppl. SCR 66 = (2003) 1
SCC 444 - referred to.
1134
A
B
V. Dhanapal Chettiar v. Yesodai Ammal 1980 (1)
SCR 334 = (1979) 4 SCC 214 - distinguished.
1.4 The view taken by the Full Bench holding the
amended provision not to be applicable to pending cases
is not correct on principle. The decision rendered by the
Full Bench would, therefore, stand overruled but only
prospectively. It would be so because the trial of the
cases that were sent back from the Court of Session to
the Court of Magistrate First Class under the orders of the
Full Bench may also have been concluded or may be at
an advanced stage. Any change of forum at this stage in
such cases would cause unnecessary and avoidable
hardship to the accused in those cases if they were to
be committed to Court of Session for trial in the light of
the amendment and the view expressed by this Court.
[para 19] [1148-C-E]
Re: Amendment of First Schedule of Criminal Procedure
Code by Criminal Procedure Code (M.P. Amendment) Act,
2007 : 2008 (3) MPLJ 311- overruled.
1.5 The principle of prospective overruling has been
invoked by this Court, no matter sparingly, to avoid
unnecessary hardship and anomalies. The instant case
is one in which this Court need to make it clear that the
overruling of the Full Bench decision of the Madhya
Pradesh High Court will not affect cases that have
already been tried or are at an advanced stage before the
Magistrates in terms of the said decision. [para 20 and 25]
[1148-F; 1150-G]
C
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
I.C. Golak Nath and Ors. v. State of Punjab and Ors. 1967
SCR 762 = AIR 1967 SC 1643; Ashok Kumar Gupta and Anr.
v. State of U.P. and Ors. 1997 (3) SCR 269 = (1997) 5 SCC
201; Baburam v. C.C. Jacob and Ors. (1999) 3 SCC 362;
Harish Dhingra v. State of Haryana & Ors. 2001 (3) Suppl.
B SCR 446 = (2001) 9 SCC 550; Sarwan Kumar and Anr. v.
Madan Lal Aggarwal 2003 (1) SCR 918 = (2003) 4 SCC
147– relied on.
Rajasthan State Road Transport Corporation and Anr. v.
Bal Mukund Bairwa 2009 (2) SCR 161 = (2009) 4 SCC 299
C – referred to.
Case Law Reference:
D
E
F
G
H
D
E
F
G
H
1964 SCR 37
referred to
para 7
1976 (0) Suppl. SCR 524
referred to
para 7
1979 (2) SCR 717
referred to
para 7
1976 (2) SCR 266
relied on
para 9
1994 (1) Suppl. SCR 360
relied on
para 10
2005 (4) Suppl. SCR 851
relied on
para 11
(1952) 54 Bom LR 330
stood overruled para 11
1967 SCR 475
distinguished
para 14
1996 (3) SCR 1200
distinguished
para 14
2002 (5) Suppl. SCR 66
distinguished
para 14
1980 (1) SCR 334
distinguished
para 14
1969 SCR 411
relied on
para 17
1959 SCR 919
relied on
para 18
1967 SCR 762
relied on
para 20
1997 (3) SCR 269
relied on
para 20
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH
1135
(1999) 3 SCC 362
relied on
para 21
2001 (3) Suppl. SCR 446
relied on
para 22
2003 (1) SCR 918
relied on
para 23
2009 (2) SCR 161
referred to
para 24
1136
A
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 353 of 2013.
From the Judgment & Order dated 02.05.20111 of the
High Court of Madhya Pradesh, Principal Seat at Jabalpur in
Criminal Revision No. 713 of 2011.
C
June Chaudhary, Sumeeta Chaudhari, Prabhat Kumar,
Anshuman Ashok, Dr. Kailash Chand for the Appellant.
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. The short question that falls for determination in this
appeal is whether the appellant could be tried by the Judicial
Magistrate, First Class, for the offences punishable under
Sections 408, 420, 467, 468 and 471 of the IPC notwithstanding
the fact that the First Schedule of the Code of Criminal
Procedure, 1973 as amended by Code of Criminal Procedure
(Madhya Pradesh Amendment) Act of 2007, made offences
punishable under Sections 467, 468 and 471 of the Penal
Code triable only by the Court of Sessions. The Trial Court of
9th Additional Sessions Judge, Jabalpur has answered that
question in the negative and held that after the amendment the
appellant could be tried only by the Court of Sessions. That view
has been affirmed by the High Court of Madhya Pradesh at
Jabalpur in a criminal revision petition filed by the appellant
against the order passed by the Trial Court. The factual matrix
in which the controversy arises may be summarised as under:
3. Crime No.129 of 2007 for commission of offences
punishable under Sections 408, 420, 467, 468 and 471 of the
IPC was registered against the appellant on 18th May, 2007,
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A at Bheraghat Police Station. On the date of the registration of
the case the offences in question were triable by a Magistrate
of First Class in terms of the First Schedule of Code of Criminal
Procedure, 1973. That position underwent a change on account
of the Code of Criminal Procedure (Madhya Pradesh
B Amendment) Act of 2007 introduced by Madhya Pradesh Act
2 of 2008 which amended the First Schedule of the 1973 Code
and among others made offences under Sections 467, 468 and
471 of the IPC triable by the Court of Sessions instead of a
Magistrate of First Class. The amendment received the assent
C of the President on 14th February, 2008 and was published in
Madhya Pradesh Gazette (Extraordinary) on 22nd February,
2008. Consequent upon the amendment aforementioned, the
Judicial Magistrate, First Class appears to have committed to
the Sessions Court all cases involving commission of offences
under the above provisions. In one such case the Sessions
D
Judge, Jabalpur, made a reference to the High Court on the
following two distinct questions of law:
E
F
1. Whether the recent amendment dated 22nd February,
2008 in the Schedule-I of the Cr.P.C. is to be applied
retrospectively?
2. Consequently, whether the cases pending before the
Magistrate First Class, in which evidence partly or wholly
has been recorded, and now have been committed to this
Court are to be tried de novo by the Court of Sessions or
should be remanded back to the Magistrate First Class
for further trial?
4. A Full Bench of the High Court of Madhya Pradesh in
Re: Amendment of First Schedule of Criminal Procedure Code
by Criminal Procedure Code (M. P. Amendment) Act, 2007
G 2008 (3) MPLJ 311, answered the reference and held that all
cases pending before the Court of Judicial Magistrate First
Class as on 22nd February, 2008 remained unaffected by the
amendment and were triable by the Judicial Magistrate First
Class as the Amendment Act did not contain a clear indication
H that such cases also have to be made over to the Court of
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH [T.S. THAKUR, J.]
1137
1138
Sessions. The Court further held that all such cases as were
pending before the Judicial Magistrate First Class and had
been committed to the Sessions Court shall be sent back to
the Judicial Magistrate First Class in accordance with law. The
reference was answered accordingly.
A
A
5. Relying upon the decision of the Full Bench the appellant
filed an application before the trial Court seeking a similar
direction for remission of the case for trial by a Judicial
Magistrate. The appellant argued on the authority of the above
decision that although the police had not filed a charge-sheet
against the appellant and the investigation in the case was
pending as on the date the amendment came into force, the
appellant had acquired the right of trial by a forum specified in
Schedule I of the 1973 Code. Any amendment to the said
provision shifting the forum of trial to the Court of Sessions was
not attracted to the appellant’s case thereby rendering the
committal of the case to the Sessions Court and the proposed
trial of the appellant before the Sessions Court illegal. The trial
Court, as mentioned earlier, repelled that contention and held
that since no charge-sheet had been filed before the Magistrate
as on the date the amendment came into force, the case was
exclusively triable by the Sessions Court. The High Court has
affirmed that view and dismissed the revision petition filed by
the appellant, hence the present appeal.
B
B
6. The Code of Criminal Procedure (Madhya Pradesh
Amendment) Act, 2007 is in the following words:
1.
Short title. – (1) This Act may be called the Code
of Criminal Procedure (Madhya Pradesh
Amendment) Act, 2007.
2.
Amendment of Central Act No.2 of 1974 in its
3.
4.
C
C
D
D
E
F
G
H
[2013] 1 S.C.R.
application to the State of Madhya Pradesh – The
Code of Criminal Procedure, 1973 (No. 2 of 1974)
(hereinafter referred to as the Principal Act), shall
in its application to the State of Madhya Pradesh,
be amended in the manner hereinafter provided.
Amendment of Section 167 - ......
xxxx
“An Act further to amend the Code of Criminal Procedure,
1973 in its application to the State of Madhya Pradesh.
Be it enacted by the Madhya Pradesh Legislature in
the Fifty-eighth Year of the Republic of India as follows:
SUPREME COURT REPORTS
xxx xxx
Amendment of the First Schedule – In the First
Schedule to the Principal Act, under the heading “IOffences under the Indian Penal Code” in column
6 against section 317, 318, 326, 363, 363A, 365,
377, 392, 393, 394, 409, 435, 466, 467, 468, 471,
472, 473, 475, 476, 477 and 477A, for the words
“Magistrate of First Class” wherever they occur, the
words “Court of Sessions” shall be substituted.”
7. The First Schedule to the Criminal Procedure Code
1973 classifies offences under the IPC for purposes of
determining whether or not a particular offence is cognizable
or non-cognizable and bailable or non-bailable. Column 6 of the
E First Schedule indicates the Court by which the offence in
question is triable. The Madhya Pradesh Amendment extracted
above has shifted the forum of trial from the Court of a
Magistrate of First Class to the Court of Sessions. The question
is whether the said amendment is prospective and will be
F applicable only to offences committed after the date the
amendment was notified or would govern cases that were
pending on the date of the amendment or may have been filed
after the same had become operative. The Full Bench has
taken the view that since there is no specific provision
contained in the Amendment Act making the amendment
G
applicable to pending cases, the same would not apply to
cases that were already filed before the Magistrate. This
implies that if a case had not been filed upto the date the
Amendment Act came into force, it would be governed by the
Amended Code and hence be triable only by the Sessions
H
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH [T.S. THAKUR, J.]
1139
Court. The Code of Criminal Procedure does not, however,
provide any definition of institution of a case. It is, however, trite
that a case must be deemed to be instituted only when the Court
competent to take cognizance of the offence alleged therein
does so. The cognizance can, in turn, be taken by a Magistrate
on a complaint of facts filed before him which constitutes such
an offence. It may also be taken if a police report is filed before
the Magistrate in writing of such facts as would constitute an
offence. The Magistrate may also take cognizance of an
offence on the basis of his knowledge or suspicion upon
receipt of the information from any person other than a police
officer. In the case of the Sessions Court, such cognizance is
taken on commitment to it by a Magistrate duly empowered in
that behalf. All this implies that the case is instituted in the
Magistrate’s Court when the Magistrate takes cognizance of
an offence, in which event the case is one instituted on a
complaint or a police report. The decision of this Court in
Jamuna Singh and Ors. v. Bahdai Shah AIR 1964 SC 1541,
clearly explains the legal position in this regard. To the same
effect is the decision of this Court in Devrapally
Lakshminarayana Reddy and Ors. v. Narayana Reddy and
Ors. (1976) 3 SCC 252 where this Court held that a case can
be said to be instituted in a Court only when the Court takes
cognizance of the offence alleged therein and that cognizance
can be taken in the manner set out in clauses (a) to (c) of
Section 190(1) of the Cr.P.C. We may also refer to the
decision of this Court in Kamlapati Trivedi v. State of West
Bengal (1980) 2 SCC 91 where this Court interpreted the
provisions of Section 190 Cr.P.C. and reiterated the legal
position set out in the earlier decisions.
8. Applying the test judicially recognized in the above
pronouncements to the case at hand, we have no hesitation in
holding that no case was pending before the Magistrate
against the appellant as on the date the Amendment Act came
into force. That being so, the Magistrate on receipt of a chargesheet which was tantamount to institution of a case against the
appellant was duty bound to commit the case to the Sessions
1140
A
B
C
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A as three of the offences with which he was charged were triable
only by the Court of Sessions. The case having been instituted
after the Amendment Act had taken effect, there was no need
to look for any provision in the Amendment Act for determining
whether the amendment was applicable even to pending
B matters as on the date of the amendment no case had been
instituted against the appellant nor was it pending before any
Court to necessitate a search for any such provision in the
Amendment Act. The Sessions Judge as also the High Court
were, in that view, perfectly justified in holding that the order of
committal passed by the Magistrate was a legally valid order
C
and the appellant could be tried only by the Court of Sessions
to which the case stood committed.
D
D
E
E
F
F
G
G
H
H
9. Having said so, we may now examine the issue from a
slightly different angle. The question whether any law relating
to forum of trial is procedural or substantive in nature has been
the subject matter of several pronouncements of this Court in
the past. We may refer to some of these decisions, no matter
briefly. In New India Insurance Company Ltd. v. Smt. Shanti
Misra, Adult (1975) 2 SCC 840, this Court was dealing with
the claim of payment of compensation under the Motor Vehicles
Act. The victim of the accident had passed away because of
the vehicular accident before the constitution of the Claims
Tribunal under the Motor Vehicles Act, 1939, as amended. The
legal heirs of the deceased filed a claim petition for payment
of compensation before the Tribunal after the Tribunal was
established. The question that arose was whether the claim
petition was maintainable having regard to the fact that the
cause of action had arisen prior to the change of the forum for
trial of a claim for payment of compensation. This Court held
that the change of law operates retrospectively even if the
cause of action or right of action had accrued prior to the
change of forum. The claimant shall, therefore, have to
approach the forum as per the amended law. The claimant,
observed this Court, had a “vested right of action” but not a
“vested right of forum”. It also held that unless by express words
the new forum is available only to causes of action arising after
J.]
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH [T.S. THAKUR, J.]
1141
the creation of the forum, the general rule is to make it
retrospective. The following passages are in this regard
apposite:
“5. On the plain language of Sections 110-A and 110-F
there should be no difficulty in taking the view that the
change in law was merely a change of forum i.e. a change
of adjectival or procedural law and not of substantive law.
It is a well-established proposition that such a change of
law operates retrospectively and the person has to go to
the new forum even if his cause of action or right of action
accrued prior to the change of forum. He will have a vested
right of action but not a vested right of forum. If by express
words the new forum is made available only to causes of
action arising after the creation of the forum, then the
retrospective operation of the law is taken away. Otherwise
the general rule is to make it retrospective. The
expressions “arising out of an accident” occurring in subsection (1) and “over the area in which the accident
occurred”, mentioned in sub-section (2) clearly show that
the change of forum was meant to be operative
retrospectively irrespective of the fact as to when the
accident occurred. To that extent there was no difficulty in
giving the answer in a simple way. But the provision of
limitation of 60 days contained in sub-section (3) created
an obstacle in the straight application of the wellestablished principle of law. If the accident had occurred
within 60 days prior to the constitution of the tribunal then
the bar of limitation provided in sub-section (3) was not an
impediment. An application to the tribunal could be said
to be the only remedy. If such an application, due to one
reason or the other, could not be made within 60 days then
the tribunal had the power to condone the delay under the
proviso. But if the accident occurred more than 60 days
before the constitution of the tribunal then the bar of
limitation provided in sub-section (3) of Section 110-A on
its face was attracted. This difficulty of limitation led most
of the High Courts to fall back upon the proviso and say
1142
A
A
B
B
C
C
D
D
E
E
F
G
H
SUPREME COURT REPORTS
[2013] 1 S.C.R.
that such a case will be a fit one where the tribunal would
be able to condone the delay under the proviso to subsection (3), and led others to say that the tribunal will have
no jurisdiction to entertain such an application and the
remedy of going to the civil court in such a situation was
not barred under Section 110-F of the Act. While taking
the latter view the High Court failed to notice that primarily
the law engrafted in Sections 110-A and 110-F was a law
relating to the change of forum.
6. In our opinion in view of the clear and
unambiguous language of Sections 110-A and 110-F it is
not reasonable and proper to allow the law of change of
forum give way to the bar of limitation provided in subsection (3) of Section 110-A. It must be vice versa. The
change of the procedural law of forum must be given effect
to. The underlying principle of the change of law brought
about by the amendment in the year 1956 was to enable
the claimants to have a cheap remedy of approaching the
claims tribunal on payment of a nominal court fee whereas
a large amount of ad valorem court fee was required to
be paid in civil court.”
10. In Hitendra Vishnu Thakur and Ors. etc. etc. v. State
of Maharashtra and Ors. (1994) 4 SCC 602, one of the
questions which this Court was examining was whether clause
(bb) of Section 20(4) of Terrorist and Disruptive Activities
F (Prevention) Act, 1987 introduced by an Amendment Act
governing Section 167(2) of the Cr.P.C. in relation to TADA
matters was in the realm of procedural law and if so, whether
the same would be applicable to pending cases. Answering the
question in the affirmative this Court speaking through A.S.
G Anand, J. (as His Lordship then was), held that Amendment Act
43 of 1993 was retrospective in operation and that clauses (b)
and (bb) of sub-section (4) of Section 20 of TADA apply to the
cases which were pending investigation on the date when the
amendment came into force. The Court summed up the legal
H position with regard to the procedural law being retrospective
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH [T.S. THAKUR, J.]
1143
in its operation and the right of a litigant to claim that he be tried
by a particular Court, in the following words:
“26. xxx
1144
A
held that if a Court has jurisdiction to try the suit, when it
comes on for disposal, it then cannot refuse to assume
jurisdiction by reason of the fact that it had no jurisdiction
to entertain it at the date when it was instituted. We are in
complete agreement with these observations...”
B
B
(emphasis supplied)
C
C
D
D
(ii) Law relating to forum and limitation is procedural
in nature, whereas law relating to right of action and right
of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law
but no such right exists in procedural law.
(iv) A procedural statute should not generally
speaking be applied retrospectively where the result would
be to create new disabilities or obligations or to impose
new duties in respect of transactions already
accomplished.
(v) A statute which not only changes the procedure
but also creates new rights and liabilities shall be construed
to be prospective in operation, unless otherwise provided,
either expressly or by necessary implication.”
11. We may also refer to the decision of this Court in
Sudhir G. Angur and Ors. v. M. Sanjeev and Ors. (2006) 1
SCC 141 where a three-Judge Bench of this Court approved
the decision of the Bombay High Court in Shiv Bhagwan Moti
Ram Saraoji v. Onkarmal Ishar Dass and Ors. (1952) 54 Bom
LR 330 and observed:
“12....It has been held that a Court is bound to take notice
of the change in the law and is bound to administer the
law as it was when the suit came up for hearing. It has been
[2013] 1 S.C.R.
A
xxx
(i) A statute which affects substantive rights is
presumed to be prospective in operation unless made
retrospective, either expressly or by necessary intendment,
whereas a statute which merely affects procedure, unless
such a construction is textually impossible, is presumed to
be retrospective in its application, should not be given an
extended meaning and should be strictly confined to its
clearly defined limits.
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12. In Shiv Bhagwan Moti Ram Saraoji’s case (supra) the
Bombay High Court has held procedural laws to be in force
unless the legislatures expressly provide to the contrary. The
Court observed:
“...Now, I think it may be stated as a general principle
that no party has a vested right to a particular proceeding
or to a particular forum, and it is also well settled that all
procedural laws are retrospective unless the Legislature
expressly states to the contrary. Therefore, procedural laws
in force must be applied at the date when a suit or
proceeding comes on for trial or disposal...”
(emphasis supplied)
E
F
G
H
13. The amendment to the Criminal Procedure Code in the
E instant case has the effect of shifting the forum of trial of the
accused from the Court of Magistrate First Class to the Court
of Sessions. Apart from the fact that as on the date the
amendment came into force no case had been instituted
against the appellant nor the Magistrate had taken cognizance
F against the appellant, any amendment shifting the forum of the
trial had to be on principle retrospective in nature in the
absence of any indication in the Amendment Act to the contrary.
The appellant could not claim a vested right of forum for his trial
for no such right is recognised. The High Court was, in that view
G of the matter, justified in interfering with the order passed by
the Trial Court.
14. The questions formulated by the Full Bench of the High
Court were answered in the negative holding that all cases
pending in the Court of Judicial Magistrate First Class as on
H 22nd February, 2008 when the amendment to the First
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH [T.S. THAKUR, J.]
1145
Schedule to the Cr.P.C. became operative, will remain
unaffected by the said amendment and such matters as were,
in the meanwhile committed to the Court of Sessions, will be
sent back to the Judicial Magistrate First Class for trial in
accordance with law. In coming to that conclusion the Full Bench
placed reliance upon three decisions of this Court in
Manujendra Dutt. v. Purnedu Prosad Roy Chowdhury & Ors.
AIR 1967 SC 1419, Commissioner of Income-tax, Bangalore
v. Smt. R. Sharadamma (1996) 8 SCC 388 and R.
Kapilanath(Dead) through L.R. v. Krishna (2003) 1 SCC 444.
The ratio of the above decisions, in our opinion, was not directly
applicable to the fact situation before the Full Bench. The Full
Bench of the High Court was concerned with cases where
evidence had been wholly or partly recorded before the Judicial
Magistrate First Class when the same were committed to the
Court of Sessions pursuant to the amendment to the Code of
Criminal Procedure. The decisions upon which the High Court
placed reliance did not, however, deal with those kind of fact
situations. In Manujendra Dutt’s case (supra) the proceedings
in the Court in which the suit was instituted had concluded. At
any rate, no vested right could be claimed for a particular forum
for litigation. The decisions of this Court referred to by us earlier
settle the legal position which bears no repetition. It is also
noteworthy that the decision in Manujendra Dutt’s case (supra)
was subsequently overruled by a seven-Judge Bench of this
Court in V. Dhanapal Chettiar v. Yesodai Ammal (1979) 4
SCC 214 though on a different legal point.
15. So also the decision of this Court in Smt. R.
Sharadamma’s case (supra) relied upon by the Full Bench was
distinguishable on facts. The question there related to a liability
incurred under a repealed enactment. Proceedings in the forum
in which the case was instituted had concluded and the matter
had been referred to Inspecting Assistant Commissioner before
the dispute regarding jurisdiction arose.
16. The decision of this Court in R. Kapilanath’s case
(supra), relied upon by the Full Bench was also distinguishable
1146
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C
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[2013] 1 S.C.R.
A since that was a case where the eviction proceedings before
the Court of Munsif under the Karnataka Rent Control Act, 1961
had concluded when the Karnataka Rent Control (Amendment)
Act, 1994 came into force. By that amendment, the Court of
Munsif was deprived of jurisdiction in such cases. This Court
B held that the change of forum did not affect pending
proceedings. This Court further held that the challenge to the
competence of the forum was raised for the first time, that too
as an additional ground before this Court and that, for other
factors, the Court was inclined to uphold the jurisdiction of the
C Court of Munsif to entertain and adjudicate upon the eviction
matter. The fact situation was thus different in this case.
17. Even otherwise the Full Bench failed to notice the law
declared by this Court in a series of pronouncements on the
subject to which we may briefly refer at this stage. In Nani Gopal
D Mitra v. State of Bihar AIR 1970 SC 1636, this Court declared
that amendments relating to procedure operated
retrospectively subject to the exception that whatever be the
procedure which was correctly adopted and proceedings
concluded under the old law the same cannot be reopened for
E the purpose of applying the new procedure. In that case the trial
of the appellant had been taken up by Special Judge, Santhal
Paraganas when Section 5(3) of the Prevention of Corruption
Act, 1947 was still operative. The appellant was convicted by
the Special Judge before the Amendment Act repealing
F Section 5(3) was promulgated. This Court held that the
conviction pronounced by the Special Judge could not be
termed illegal just because there was an amendment to the
procedural law on 18th December 1964. The following
passage is, in this regard, apposite:
G
G
H
H
“…. It is therefore clear that as a general rule the amended
law relating to procedure operates retrospectively. But
there is another equally important principle, viz. that a
statute should not be so construed as to create new
disabilities or obligations or impose new duties in respect
of transactions which were complete at the time the
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH [T.S. THAKUR, J.]
1147
amending Act came into force--(See In re a Debtor, and
In re Vernazza. The same principle is embodied in
Section 6 of the General Clauses Act which is to the
following effect:
1148
A
A
B
B
C
C
xx xx xx (Section 6 is quoted) xx xx xx
…. The effect of the application of this principle is that
pending cases although instituted under the old Act but still
pending are governed by the new procedure under the
amended law, but whatever procedure was correctly
adopted and concluded under the old law cannot be
opened again for the purpose of applying the new
procedure. In the present case, the trial of the appellant was
taken up by the Special Judge, Santhal Parganas when
Section 5(3) of the Act was still operative. The conviction
of the appellant was pronounced on March 31, 1962 by
the Special Judge, Santhal Parganus long before the
amending Act was promulgated. It is not hence possible
to accept the argument of the appellant that the conviction
pronounced by the Special Judge, Santhal Parganas has
become illegal or in any way defective in law because of
the amendment to procedural law made on December 18,
1964. In our opinion, the High Court was right in invoking
the presumption under Section 5(3) of the Act even though
it was repealed on December 18, 1964 by the amending
Act. We accordingly reject the argument of the appellant
on this aspect of the case.”
D
E
F
(emphasis supplied)
18. Reference may also be made upon the decision of this
Court in Anant Gopal Sheorey v. State of Bombay AIR 1958
SC 915 where the legal position was stated in the following
words:
“4. The question that arises for decision is whether to a
pending prosecution the provisions of the amended Code
have become applicable. There is no controversy on the
general principles applicable to the case. No person has
G
H
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[2013] 1 S.C.R.
a vested right in any course of procedure. He has only the
right of prosecution or defence in the manner prescribed
for the time being by or for the Court in which the case is
pending and if by an Act of Parliament the mode of
procedure is altered he has no other right than to proceed
according to the altered mode. See Maxwell on
Interpretation of Statutes on p. 225; The Colonial Sugar
Refining Co. Ltd. v. Irving (1905) A.C. 369, 372). In other
words a change in the law of procedure operates
retrospectively and unlike the law relating to vested right
is not only prospective.”
19. The upshot of the above discussion is that the view
taken by the Full Bench holding the amended provision to be
applicable to pending cases is not correct on principle. The
decision rendered by the Full Bench would, therefore, stand
D overruled but only prospectively. We say so because the trial
of the cases that were sent back from Sessions Court to the
Court of Magistrate First Class under the orders of the Full
Bench may also have been concluded or may be at an
advanced stage. Any change of forum at this stage in such
E cases would cause unnecessary and avoidable hardship to the
accused in those cases if they were to be committed to the
Sessions for trial in the light of the amendment and the view
expressed by us.
20. The principle of prospective overruling has been
invoked
by this Court, no matter sparingly, to avoid
F
unnecessary hardship and anomalies. That doctrine was first
invoked by this Court in I.C. Golak Nath and Ors. v. State of
Punjab and Ors. AIR 1967 SC 1643 followed by the decision
of this Court in Ashok Kumar Gupta and Anr. v. State of U.P.
G and Ors. (1997) 5 SCC 201.
21. In Baburam v. C.C. Jacob and Ors. (1999) 3 SCC
362, this Court invoked and adopted a device for avoiding
reopening of settled issues, multiplicity of proceedings and
avoidable litigation. The Court said:
H
RAMESH KUMAR SONI v. STATE OF MADHYA
PRADESH [T.S. THAKUR, J.]
1149
“5. The prospective declaration of law is a devise innovated A
by the apex court to avoid reopening of settled issues and
to prevent multiplicity of proceedings. It is also a
devise adopted to avoid uncertainty and avoidable
litigation. By the very object of prospective declaration of
law, it is deemed that all actions taken contrary to the B
declaration of law prior to its date of declaration are
validated. This is done in the larger public interest.
Therefore, the subordinate forums which are legally bound
to apply the declaration of law made by this Court are also
duty-bound to apply such dictum to cases which would C
arise in future only. In matters where decisions opposed
to the said principle have been taken prior to such
declaration of law cannot be interfered with on the basis
of such declaration of law…”
(emphasis supplied) D
22. To the same effect is the decision of this Court in
Harish Dhingra v. State of Haryana & Ors. (2001) 9 SCC 550
where this Court observed:
“7. Prospective declaration of law is a device innovated
by this Court to avoid reopening of settled issues and to E
prevent multiplicity of proceedings. It is also a device
adopted to avoid uncertainty and avoidable litigation.
By the very object of prospective declaration of law it is
deemed that all actions taken contrary to the declaration
of law, prior to the date of the declaration are validated. F
This is done in larger public interest. Therefore, the
subordinate forums which are bound to apply law declared
by this Court are also duty bound to apply such dictum to
cases which would arise in future. Since it is indisputable
that a court can overrule a decision there is no valid reason G
why it should not be restricted to the future and not to the
past. Prospective overruling is not only a part of
constitutional policy but also an extended facet of stare
decisis and not judicial legislation.”
(emphasis supplied) H
1150
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[2013] 1 S.C.R.
23. In Sarwan Kumar and Anr. v. Madan Lal Aggarwal
(2003) 4 SCC 147, this Court held that though the doctrine of
prospective overruling was initially made applicable to the
matters arising under the Constitution but subsequent decisions
have made the same applicable even to cases under different
B statutes. The Court observed:
“15. The doctrine of "prospective overruling" was initially
made applicable to the matters arising under the
Constitution but we understand the same has since been
made applicable to the matters arising under the statutes
as well. Under the doctrine of "prospective overruling" the
C
law declared by the Court applies to the cases arising in
future only and its applicability to the cases which have
attained finality is saved because the repeal would
otherwise work hardship to those who had trusted
to its existence. Invocation of doctrine of "prospective
D
overruling" is left to the discretion of the court to mould with
the justice of the cause or the matter before the court.”
A
(emphasis supplied)
24. In Rajasthan State Road Transport Corporation and
E Anr. v. Bal Mukund Bairwa (2009) 4 SCC 299, this Court relied
upon the observations made by Justice Benjamin N. Cardozo
in his famous compilation of lectures The Nature of Judicial
Process – that “ in the vast majority of cases, a judgment would
be retrospective. It is only where the hardships are too great
F that retrospective operation is withheld.”
25. The present case, in our opinion, is one in which we
need to make it clear that the overruling of the Full Bench
decision of the Madhya Pradesh High Court will not affect
cases that have already been tried or are at an advanced stage
G
before the Magistrates in terms of the said decision.
26. With the above observations, this appeal fails and is
hereby dismissed.
R.P.
H
Appeal dismissed.